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Republic of the Philippines of the Constitution is a fortiorari "without or in excess of . . .

SUPREME COURT jurisdiction." The statutory rule, therefore, in the jurisdiction is


Manila that the writ of prohibition is not confined exclusively to
courts or tribunals to keep them within the limits of their own
EN BANC jurisdiction and to prevent them from encroaching upon the
jurisdiction of other tribunals, but will issue, in appropriate
G.R. No. L-45459 March 13, 1937 cases, to an officer or person whose acts are without or in
excess of his authority. Not infrequently, "the writ is granted,
where it is necessary for the orderly administration of justice,
GREGORIO AGLIPAY, petitioner, or to prevent the use of the strong arm of the law in an
vs. oppressive or vindictive manner, or a multiplicity of actions."
JUAN RUIZ, respondent. (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304,
307.)
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent. The more important question raised refers to the alleged
violation of the Constitution by the respondent in issuing and
LAUREL, J.: selling postage stamps commemorative of the Thirty-third
International Eucharistic Congress. It is alleged that this action
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the of the respondent is violative of the provisions of section 23,
Philippine Independent Church, seeks the issuance from this subsection 3, Article VI, of the Constitution of the Philippines,
court of a writ of prohibition to prevent the respondent which provides as follows:
Director of Posts from issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic No public money or property shall ever be
Congress. appropriated, applied, or used, directly or indirectly,
for the use, benefit, or support of any sect, church,
In May, 1936, the Director of Posts announced in the dailies of denomination, secretarian, institution, or system of
Manila that he would order the issues of postage stamps religion, or for the use, benefit, or support of any
commemorating the celebration in the City of Manila of the priest, preacher, minister, or other religious teacher or
Thirty-third international Eucharistic Congress, organized by dignitary as such, except when such priest, preacher,
the Roman Catholic Church. The petitioner, in the fulfillment minister, or dignitary is assigned to the armed forces
of what he considers to be a civic duty, requested Vicente or to any penal institution, orphanage, or leprosarium.
Sotto, Esq., member of the Philippine Bar, to denounce the
matter to the President of the Philippines. In spite of the The prohibition herein expressed is a direct corollary of the
protest of the petitioner's attorney, the respondent publicly principle of separation of church and state. Without the
announced having sent to the United States the designs of the necessity of adverting to the historical background of this
postage stamps for printing as follows: principle in our country, it is sufficient to say that our history,
not to speak of the history of mankind, has taught us that the
"In the center is chalice, with grape vine and stalks of wheat as union of church and state is prejudicial to both, for ocassions
border design. The stamps are blue, green, brown, cardinal might arise when the estate will use the church, and the church
red, violet and orange, 1 inch by 1,094 inches. The the state, as a weapon in the furtherance of their recognized
denominations are for 2, 6, 16, 20, 36 and 50 centavos." The this principle of separation of church and state in the early
said stamps were actually issued and sold though the greater stages of our constitutional development; it was inserted in the
part thereof, to this day, remains unsold. The further sale of the Treaty of Paris between the United States and Spain of
stamps is sought to be prevented by the petitioner herein. December 10, 1898, reiterated in President McKinley's
Instructions of the Philippine Commission, reaffirmed in the
The Solicitor-General contends that the writ of prohibition is Philippine Bill of 1902 and in the autonomy Act of August 29,
not the proper legal remedy in the instant case, although he 1916, and finally embodied in the constitution of the
admits that the writ may properly restrain ministerial Philippines as the supreme expression of the Filipino people. It
functions. While, generally, prohibition as an extraordinary is almost trite to say now that in this country we enjoy both
legal writ will not issue to restrain or control the performance religious and civil freedom. All the officers of the
of other than judicial or quasi-judicial functions (50 C. J., Government, from the highest to the lowest, in taking their
6580, its issuance and enforcement are regulated by statute oath to support and defend the constitution, bind themselves to
and in this jurisdiction may issue to . . . inferior tribunals, recognize and respect the constitutional guarantee of religious
corporations, boards, or persons, whether excercising freedom, with its inherent limitations and recognized
functions judicial or ministerial, which are without or in implications. It should be stated that what is guaranteed by our
excess of the jurisdiction of such tribunal, corporation, board, Constitution is religious liberty, not mere religious toleration.
or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.)
The terms "judicial" and "ministerial" used with reference to Religious freedom, however, as a constitutional mandate is not
"functions" in the statute are undoubtedly comprehensive and inhibition of profound reverence for religion and is not denial
include the challenged act of the respondent Director of Posts of its influence in human affairs. Religion as a profession of
in the present case, which act because alleged to be violative faith to an active power that binds and elevates man to his
Creator is recognized. And, in so far as it instills into the amount herein appropriated in the manner indicated and as
minds the purest principles of morality, its influence is deeply often as may be deemed advantageous to the Government.
felt and highly appreciated. When the Filipino people, in the
preamble of their Constitution, implored "the aid of Divine SEC. 3. This amount or any portion thereof not otherwise
Providence, in order to establish a government that shall expended shall not revert to the Treasury.
embody their ideals, conserve and develop the patrimony of
the nation, promote the general welfare, and secure to SEC. 4. This act shall take effect on its approval.
themselves and their posterity the blessings of independence
under a regime of justice, liberty and democracy," they thereby
manifested reliance upon Him who guides the destinies of men Approved, February 21, 1933.
and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general It will be seen that the Act appropriates the sum of sixty
concessions are indiscriminately accorded to religious sects thousand pesos for the costs of plates and printing of postage
and denominations. Our Constitution and laws exempt from stamps with new designs and other expenses incident thereto,
taxation properties devoted exclusively to religious purposes and authorizes the Director of Posts, with the approval of the
(sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and Secretary of Public Works and Communications, to dispose of
sec. 1, subsec. 4, Ordinance appended thereto; Assessment the amount appropriated in the manner indicated and "as often
Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not as may be deemed advantageous to the Government". The
prohibited when a priest, preacher, minister or other religious printing and issuance of the postage stamps in question
teacher or dignitary as such is assigned to the armed forces or appears to have been approved by authority of the President of
to any penal institution, orphanage or leprosarium 9 sec. 13, the Philippines in a letter dated September 1, 1936, made part
subsec. 3, Art. VI, Constitution of the Philippines). Optional of the respondent's memorandum as Exhibit A. The respondent
religious instruction in the public schools is by constitutional alleges that the Government of the Philippines would suffer
mandate allowed (sec. 5, Art. XIII, Constitution of the losses if the writ prayed for is granted. He estimates the
Philippines, in relation to sec. 928, Adm. Code). Thursday and revenue to be derived from the sale of the postage stamps in
Friday of Holy Week, Thanksgiving Day, Christmas Day, and question at P1,618,17.10 and states that there still remain to be
Sundays and made legal holidays (sec. 29, Adm. Code) sold stamps worth P1,402,279.02.
because of the secular idea that their observance is conclusive
to beneficial moral results. The law allows divorce but Act No. 4052 contemplates no religious purpose in view. What
punishes polygamy and bigamy; and certain crimes against it gives the Director of Posts is the discretionary power to
religious worship are considered crimes against the determine when the issuance of special postage stamps would
fundamental laws of the state (see arts. 132 and 133, Revised be "advantageous to the Government." Of course, the phrase
Penal Code). "advantageous to the Government" does not authorize the
violation of the Constitution. It does not authorize the
In the case at bar, it appears that the respondent Director of appropriation, use or application of public money or property
Posts issued the postage stamps in question under the for the use, benefit or support of a particular sect or church. In
provisions of Act No. 4052 of the Philippine Legislature. This the present case, however, the issuance of the postage stamps
Act is as follows: in question by the Director of Posts and the Secretary of
Public Works and Communications was not inspired by any
No. 4052. — AN ACT APPROPRIATING THE SUM sectarian denomination. The stamps were not issue and sold
OF SIXTY THOUSAND PESOS AND MAKING for the benefit of the Roman Catholic Church. Nor were
THE SAME AVAILABLE OUT OF ANY FUNDS IN money derived from the sale of the stamps given to that
THE INSULAR TREASURY NOT OTHERWISE church. On the contrary, it appears from the latter of the
APPROPRIATED FOR THE COST OF PLATES Director of Posts of June 5, 1936, incorporated on page 2 of
AND PRINTING OF POSTAGE STAMPS WITH the petitioner's complaint, that the only purpose in issuing and
NEW DESIGNS, AND FOR OTHER PURPOSES. selling the stamps was "to advertise the Philippines and attract
more tourist to this country." The officials concerned merely,
took advantage of an event considered of international
Be it enacted by the Senate and House of importance "to give publicity to the Philippines and its people"
Representatives of the Philippines in Legislature (Letter of the Undersecretary of Public Works and
assembled and by the authority of the same: Communications to the President of the Philippines, June 9,
1936; p. 3, petitioner's complaint). It is significant to note that
SECTION 1. The sum of sixty thousand pesos is hereby the stamps as actually designed and printed (Exhibit 2),
appropriated and made immediately available out of any funds instead of showing a Catholic Church chalice as originally
in the Insular Treasury not otherwise appropriated, for the planned, contains a map of the Philippines and the location of
costs of plates and printing of postage stamps with new the City of Manila, and an inscription as follows: "Seat
designs, and other expenses incident thereto. XXXIII International Eucharistic Congress, Feb. 3-7,1937."
What is emphasized is not the Eucharistic Congress itself but
SEC. 2. The Director of Posts, with the approval of the Manila, the capital of the Philippines, as the seat of that
Secretary of Public Works and Communications, is hereby congress. It is obvious that while the issuance and sale of the
authorized to dispose of the whole or any portion of the stamps in question may be said to be inseparably linked with
an event of a religious character, the resulting propaganda, if
any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the DECISION
Government should not be embarassed in its activities simply
because of incidental results, more or less religious in CORONA, J.:
character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The Before us is a petition for prohibition filed by petitioner
main purpose should not be frustrated by its subordinate to Islamic Da'wah Council of the Philippines, Inc. (IDCP)
mere incidental results not contemplated. (Vide Bradfield vs. praying for the declaration of nullity of Executive Order (EO)
Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 46, s. 2001 and the prohibition of herein respondents Office of
168.) the Executive Secretary and Office of Muslim Affairs (OMA)
from implementing the subject EO.
We are much impressed with the vehement appeal of counsel
for the petitioner to maintain inviolate the complete separation Petitioner IDCP, a corporation that operates under Department
of church and state and curb any attempt to infringe by of Social Welfare and Development License No. SB-01-085, is
indirection a constitutional inhibition. Indeed, in the a non-governmental organization that extends voluntary
Philippines, once the scene of religious intolerance and services to the Filipino people, especially to Muslim
prescription, care should be taken that at this stage of our communities. It claims to be a federation of national Islamic
political development nothing is done by the Government or organizations and an active member of international
its officials that may lead to the belief that the Government is organizations such as the Regional Islamic Da'wah Council of
taking sides or favoring a particular religious sect or Southeast Asia and the Pacific (RISEAP)[1] and The World
institution. But, upon very serious reflection, examination of Assembly of Muslim Youth. The RISEAP accredited petitioner
Act No. 4052, and scrutiny of the attending circumstances, we to issue halal[2] certifications in the Philippines. Thus, among
have come to the conclusion that there has been no the functions petitioner carries out is to conduct seminars,
constitutional infraction in the case at bar, Act No. 4052 grants orient manufacturers on halal food and issue halal
the Director of Posts, with the approval of the Secretary of certifications to qualified products and manufacturers.
Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed Petitioner alleges that, on account of the actual need to certify
advantageous to the Government." Even if we were to assume food products as halal and also due to halal food producers'
that these officials made use of a poor judgment in issuing and request, petitioner formulated in 1995 internal rules and
selling the postage stamps in question still, the case of the procedures based on the Qur'an[3] and the Sunnah[4] for the
petitioner would fail to take in weight. Between the exercise of analysis of food, inspection thereof and issuance of halal
a poor judgment and the unconstitutionality of the step taken, certifications. In that same year, petitioner began to issue, for a
a gap exists which is yet to be filled to justify the court in fee, certifications to qualified products and food
setting aside the official act assailed as coming within a manufacturers. Petitioner even adopted for use on its halal
constitutional inhibition. certificates a distinct sign or logo registered in the Philippine
Patent Office under Patent No. 4-2000-03664.
The petition for a writ of prohibition is hereby denied, without
pronouncement as to costs. So ordered. On October 26, 2001, respondent Office of the Executive
Secretary issued EO 46[5] creating the Philippine Halal
Certification Scheme and designating respondent OMA to
Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and oversee its implementation. Under the EO, respondent OMA
Concepcion, JJ., concur. has the exclusive authority to issue halal certificates and
perform other related regulatory activities.

On May 8, 2002, a news article entitled "OMA Warns NGOs


453 Phil. 440 Issuing Illegal `Halal' Certification" was published in the
Manila Bulletin, a newspaper of general circulation. In said
article, OMA warned Muslim consumers to buy only products
EN BANC with its official halal certification since those without said
certification had not been subjected to careful analysis and
[ G.R. No. 153888, July 09, 2003 ] therefore could contain pork or its derivatives. Respondent
OMA also sent letters to food manufacturers asking them to
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES,
INC., HEREIN REPRESENTED BY PROF. secure the halal certification only from OMA lest they violate
EO 46 and RA 4109.[6] As a result, petitioner lost revenues
ABDULRAFIH H. SAYEDY, PETITIONER, VS. OFFICE
OF THE EXECUTIVE SECRETARY OF THE OFFICE after food manufacturers stopped securing certifications from
it.
OF THE PRESIDENT OF THE PHILIPPINES, HEREIN
REPRESENTED BY HON. ALBERTO G. ROMULO,
Hence, this petition for prohibition.
EXECUTIVE SECRETARY, AND THE OFFICE ON
MUSLIM AFFAIRS, HEREIN REPRESENTED BY ITS
Petitioner contends that the subject EO violates the
EXECUTIVE DIRECTOR, HABIB MUJAHAB
HASHIM, RESPONDENTS. constitutional provision on the separation of Church and State.
[7]
It is unconstitutional for the government to formulate
policies and guidelines on the halal certification scheme ought to live, consistent with the liberty of others and with the
because said scheme is a function only religious organizations, common good."[10]
entity or scholars can lawfully and validly perform for the
Muslims. According to petitioner, a food product becomes Without doubt, classifying a food product as halal is a
halal only after the performance of Islamic religious ritual and religious function because the standards used are drawn from
prayer. Thus, only practicing Muslims are qualified to the Qur'an and Islamic beliefs. By giving OMA the exclusive
slaughter animals for food. A government agency like herein power to classify food products as halal, EO 46 encroached on
respondent OMA cannot therefore perform a religious function the religious freedom of Muslim organizations like herein
like certifying qualified food products as halal. petitioner to interpret for Filipino Muslims what food products
are fit for Muslim consumption. Also, by arrogating to itself
Petitioner also maintains that the respondents violated Section the task of issuing halal certifications, the State has in effect
10, Article III of the 1987 Constitution which provides that forced Muslims to accept its own interpretation of the Qur'an
"(n)o law impairing the obligation of contracts, shall be and Sunnah on halal food.
passed." After the subject EO was implemented, food
manufacturers with existing contracts with petitioner ceased to To justify EO 46's intrusion into the subject religious activity,
obtain certifications from the latter. the Solicitor General argues that the freedom of religion is
subservient to the police power of the State. By delegating to
Moreover, petitioner argues that the subject EO violates OMA the authority to issue halal certifications, the
Sections 15 and 16 of Article XIII of the 1987 Constitution government allegedly seeks to protect and promote the muslim
which respectively provide: Filipinos' right to health, and to instill health consciousness in
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS them.

Sec. 15. The State shall respect the role of independent We disagree.
people's organizations to enable the people to pursue and
protect, within the democratic framework, their legitimate and Only the prevention of an immediate and grave danger to the
collective interests and aspirations through peaceful and security and welfare of the community can justify the
lawful means. infringement of religious freedom.[11] If the government fails to
show the seriousness and immediacy of the threat, State
People's organizations are bona fide associations of citizens intrusion is constitutionally unacceptable. In a society with a
with demonstrated capacity to promote the public interest and democratic framework like ours, the State must minimize its
with identifiable leadership, membership, and structure. interference with the affairs of its citizens and instead allow
them to exercise reasonable freedom of personal and religious
Sec. 16. The rights of the people and their organizations to activity.
effective and reasonable participation at all levels of social,
political, and economic decision-making shall not be abridged. In the case at bar, we find no compelling justification for the
The State shall, by law, facilitate, the establishment of government to deprive Muslim organizations, like herein
adequate consultation mechanisms. petitioner, of their religious right to classify a product as halal,
According to petitioner, the subject EO was issued with utter even on the premise that the health of Muslim Filipinos can be
haste and without even consulting Muslim people's effectively protected by assigning to OMA the exclusive
organizations like petitioner before it became effective. power to issue halal certifications. The protection and
promotion of the Muslim Filipinos' right to health are already
We grant the petition. provided for in existing laws and ministered to by government
agencies charged with ensuring that food products released in
OMA was created in 1981 through Executive Order No. 697 the market are fit for human consumption, properly labeled
(EO 697) "to ensure the integration of Muslim Filipinos into and safe. Unlike EO 46, these laws do not encroach on the
the mainstream of Filipino society with due regard to their religious freedom of Muslims.
beliefs, customs, traditions, and institutions." [8] OMA deals
with the societal, legal, political and economic concerns of the Section 48(4) of the Administrative Code of 1987 gives to the
Muslim community as a "national cultural community" and National Meat Inspection Commission (NMIC) of the
not as a religious group. Thus, bearing in mind the Department of Agriculture (DOA) the power to inspect
constitutional barrier between the Church and State, the latter slaughtered animals intended for human consumption to
must make sure that OMA does not intrude into purely ensure the safety of the meat released in the market. Another
religious matters lest it violate the non-establishment clause law, RA 7394, otherwise known as "The Consumer Act of
and the "free exercise of religion" provision found in Article 1992," gives to certain government departments the duty to
III, Section 5 of the 1987 Constitution.[9] protect the interests of the consumer, promote his general
welfare and to establish standards of conduct for business and
Freedom of religion was accorded preferred status by the industry.[12] To this end, a food product, before its distribution
framers of our fundamental law. And this Court has to the market, is required to secure the Philippine Standard
consistently affirmed this preferred status, well aware that it is Certification Mark after the concerned department inspects
"designed to protect the broadest possible liberty of and certifies its compliance with quality and safety standards.
[13]
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he
One such government agency designated by RA 7394 is the
Bureau of Food and Drugs (BFD) of the Department of Health Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago,
(DOH). Under Article 22 of said law, BFD has the duty to Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
promulgate and enforce rules and regulations fixing and Azcuna, and Tinga, JJ., concur.
establishing a reasonable definition and standard of identity, a Puno, J., concur with the opinion of J., Vitug.
standard of quality and a standard of fill of containers for food. Vitug, J., please see Separate Opinion.
The BFD also ensures that food products released in the Quisumbing, Sandoval-Gutierrez, J., on official leave
market are not adulterated.[14]

Furthermore, under Article 48 of RA 7394, the Department of SEPARATE OPINION


Trade and Industry (DTI) is tasked to protect the consumer
against deceptive, unfair and unconscionable sales acts or
practices as defined in Article 50.[15] DTI also enforces VITUG, J.:
compulsory labeling and fair packaging to enable the
consumer to obtain accurate information as to the nature, I concur, with the understanding as so explained during the
quality and quantity of the contents of consumer products and deliberations, that the halal certification, which herein
to facilitate his comparison of the value of such products. [16] petitioner and other similar organizations have been accredited
to issue, is not taken as a compulsory requirement for muslim
With these regulatory bodies given detailed functions on how food manufacturers to secure. Adequate safeguards being
to screen and check the quality and safety of food products, already in place to ensure the safety of all food products, food
the perceived danger against the health of Muslim and non- manufacturers would thus have the option, decided solely on
Muslim Filipinos alike is totally avoided. Of great help are the the basis of marketing advantage, whether or not to obtain the
provisions on labeling of food products (Articles 74 to 85) certification on their food products. In fine, the acquisition of
[17]
of RA 7394. In fact, through these labeling provisions, the halal certificates should remain optional or only on a voluntary
State ably informs the consuming public of the contents of basis on the part of manufacturers of muslim food products.
food products released in the market. Stiff sanctions are
imposed on violators of said labeling requirements. [1]
According to the petitioner, RISEAP is a federation of
Muslim organizations in non-Muslim countries where
Through the laws on food safety and quality, therefore, the
Muslims are minorities in Asia and the Pacific.
State indirectly aids Muslim consumers in differentiating food
from non-food products. The NMIC guarantees that the meat [2]
Halal is a Muslim term that means lawful food, things,
sold in the market has been thoroughly inspected and fit for
manners and actions allowed by God for mankind and
consumption. Meanwhile, BFD ensures that food products are
enjoined upon the believers (Petition, p. 6; Rollo, p. 8). It is a
properly categorized and have passed safety and quality
term that means "to slaughter for food" (WEBSTER'S THIRD
standards. Then, through the labeling provisions enforced by
INTERNATIONAL DICTIONARY, 1986 Ed., p. 1021).
the DTI, Muslim consumers are adequately apprised of the
products that contain substances or ingredients that, according [3]
The book composed of writings accepted by Muslims as
to their Islamic beliefs, are not fit for human intake. These are
revelations made to Mohammad by Allah and the divinely
the non-secular steps put in place by the State to ensure that
authorized basis for the religious, social, civil, commercial,
the Muslim consumers' right to health is protected. The halal
military, and legal regulations of the Islamic world
certifications issued by petitioner and similar organizations
(WEBSTER'S THIRD INTERNATIONAL DICTIONARY,
come forward as the official religious approval of a food
1986 Ed., p. 1255).
product fit for Muslim consumption.
[4]
The body of Islamic custom and practice based on
We do not share respondents' apprehension that the absence of
Mohammad's words and deeds (WEBSTER'S THIRD
a central administrative body to regulate halal certifications
INTERNATIONAL DICTIONARY, 1986 Ed., p. 2292).
might give rise to schemers who, for profit, will issue
certifications for products that are not actually halal. Aside [5]
EXECUTIVE ORDER NO. 46
from the fact that Muslim consumers can actually verify
through the labels whether a product contains non-food
AUTHORIZING THE OFFICE ON MUSLIM AFFAIRS
substances, we believe that they are discerning enough to
know who the reliable and competent certifying organizations TO UNDERTAKE PHILIPPINE HALAL
CERTIFICATION
in their community are. Before purchasing a product, they can
easily avert this perceived evil by a diligent inquiry on the
WHEREAS, it is the policy of the State to protect and promote
reliability of the concerned certifying organization.
the Filipino' right to health and instill health consciousness
among them;
WHEREFORE, the petition is GRANTED. Executive Order
46, s. 2001, is hereby declared NULL AND
VOID.Consequently, respondents are prohibited from xxx xxx xxx
enforcing the same.
WHEREAS, the establishment of a Philippine Halal
SO ORDERED.
Certification Scheme for food and non-food products will 4. Coordinate with appropriate agencies, both at local
contribute toward: and international level as may be required, to ensure the
1. The establishment of a national standards and enforcement of the Philippine Halal Certification Scheme
certification scheme for halal food and non-food products and the acceptance of Philippine products certified under
and a national standards and accreditation scheme for the Philippine Halal Certification Scheme;
establishments;
5. Issue Halal Certificates to applicants;
2. The opening of new markets and the development of
strong consumer awareness of, and confidence in, 6. Validate whether imported halal products complied
Philippine halal food and non-food products; with halal standards; and

3. The development and promotion of Philippine 7. Adopt measures to ensure the success of the
industries through the increase in the volume and value of Philippine Halal Certification Scheme.
Philippine halal food and non-food exports; and SECTION 3. Training and Research. - A halal training and
research facility to support the Philippine Halal Certification
4. The development of Philippine products which Scheme shall be established. Said facility shall be operated
comply with halal standards established in accordance under the auspices of the Office on Muslim Affairs.
with Shari'ah Law and which are highly competitive and
acceptable to the Muslim Market; SECTION 4. Funding. - Funds necessary for the initial halal
xxx xxx xxx certification and regulatory functions of the Office on Muslim
Affairs shall be sourced from the Office of the President, upon
WHEREAS, the establishment of a Philippine Halal submission by the Office on Muslim Affairs of its work and
Certification Scheme is in accordance with our country's financial plan. Subsequent annual funding requirement shall
commitments to the World Trade Organization (WTO), the be sourced from the General Appropriations Act and from the
Brunei-Indonesia-Malaysia-Philippines East ASEAN Growth income generated by the Office on Muslim Affairs.
Area (BIMP-EAGA), the ASEAN Free Trade Area (AFTA),
The Asia Pacific Economic Cooperation (APEC), and the SECTION 5. Rules and Regulations; Sanctions.- The Office
Association of Southeast Asian Nations (ASEAN), on Muslim Affairs shall formulate rules and regulations, and
specifically, the Consultative Committee on Standards and impose sanctions as may be allowed by law to ensure
Quality and the Senior Officials Meeting-ASEAN Ministers compliance therewith, for the successful implementation of the
on Agriculture and Forestry (SOM-AMAF), and with the Philippine Halal Certification Scheme; Provided, that the
efforts of SOM-AMAF to provide mechanisms for identifying Office on Muslim Affairs shall consider the pertinent
halal food and non-food products in order that ASEAN provisions of Republic Act No. 4109 in the formulation and
member countries may better comply with international halal eventual implementation of said rules and regulations.
standards and processes;
SECTION 6. Repealing Clause. - All executive issuances,
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, orders, rules and regulations which are inconsistent with any
President of the Philippines, by virtue of the powers vested in provision of this Executive Order are hereby revoked,
me by law and the Constitution, do hereby order the amended or modified accordingly.
following:
SECTION 7. Effectivity. - This Executive Order shall take
SECTION 1. Designation of the Office on Muslim Affairs to effect fifteen (15) days after its publication in two (2)
Undertake Philippine Halal Certification and Regulatory newspapers of national circulation.
Activities. - The Office on Muslim Affairs is hereby designated
to undertake Philippine halal certification and regulatory City of Manila, October 26, 2001.
activities. The Office on Muslim Affairs shall oversee the
Philippine Halal Certification Scheme. By the President:
ALBERTO ROMULO (Sgd.)
SECTION 2. Halal Certification and Regulatory Functions. -
The halal certification and regulatory functions to be exercised Executive Secretary
[6]
by the Office on Muslim Affairs shall involve the following An Act to Convert the Division of Standards Under the
powers and functions: Bureau of Commerce into A Bureau of Standards, to Provide
1. Formulate policies, guidelines and developmental for the Standardization and/or Inspection of Products and
goals within the context of the Philippine Halal Imports of the Philippines and for other Purposes.
Certification Scheme;
[7]
Section 6, Article II of the 1987 Philippine Constitution
2. Plan, facilitate, and supervise the implementation and provides that:
monitoring of components and developmental activities
relating to the Philippine Halal Certification Scheme; Sec. 6. The separation of the Church and State shall be
inviolable.
3. Ensure strict implementation of and compliance with
[8]
halal standards and guidelines; Section 1, EO 697.
[16]
Article 74, RA 7394.
[9]
SEC. 5. No law shall be made respecting an establishment
[17]
of religion, or prohibiting the free exercise thereof. The free CHAPTER IV
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. LABELING AND FAIR PACKAGING
No religious test shall be required for the exercise of civil or ARTICLE 74. Declaration of Policy. -- The State shall enforce
political rights. compulsory labeling, and fair packaging to enable the
consumer to obtain accurate information as to the nature,
[10]
Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529 quality and quantity of the contents of consumer products and
[1996] citing Victoriano vs. Elizalde Rope Workers Union, 59 to facilitate his comparison of the value of such products.
SCRA 54 [1974].
ARTICLE 75. Implementing Agency. -- The Department of
[11]
Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, Trade and Industry shall enforce the provisions of this Chapter
72 [1974]. and its implementing rules and regulations: Provided, That
with respect to food, drugs, cosmetics, devices and hazardous
[12]
Article 2, RA 7394. substances, it shall be enforced by the concerned department.
[13]
Article 14, RA 7394. ARTICLE 76. Prohibited Acts on Labeling and Packaging. --
It shall be unlawful for any person, either as principal or agent,
[14]
Article 23, RA 7394. engaged in the labeling or packaging of any consumer product,
to display or distribute or to cause to be displayed or
[15]
ARTICLE 50. Prohibition Against Deceptive Sales Acts or distributed in commerce any consumer product whose package
Practices. -- A deceptive act or practice by a seller or supplier or label does not conform to the provisions of this Chapter.
in connection with a consumer transaction violates this Act
whether it occurs before, during or after the transaction. An act The prohibition in this Chapter shall not apply to persons
or practice shall be deemed deceptive whenever the producer, engaged in the business of wholesale or retail distributors of
manufacturer, supplier or seller, through concealment, false consumer products except to the extent that such persons:
representation or fraudulent manipulation, induces a consumer
to enter into a sales or lease transaction of any consumer a) are engaged in the packaging or labeling of such
product or service. products;
b) prescribe or specify by any means the manner in which
Without limiting the scope of the above paragraph, the act or such products are packaged or labeled; or
practice of a seller or supplier is deceptive when it represents c) having knowledge, refuse to disclose the source of the
that: mislabeled or mispackaged products.
a) a consumer product or service has the sponsorship,
approval, performance, characteristics, ingredients, ARTICLE 77. Minimum Labeling Requirements for
accessories, uses, or benefits it does not have; Consumer Products. -- All consumer products domestically
b) a consumer product or service is of a particular sold whether manufactured locally or imported shall indicate
standard, quality, grade, style, or model when in fact it the following in their respective labels of packaging:
is not;
c) a consumer product is new, original or unused, when in a)
fact, it is in a deteriorated, altered, reconditioned, its correct and registered trade name or brand name;
reclaimed or second-hand state; b)
its duly registered trademark;
d) a consumer product or service is available to the
consumer for a reason that is different from the fact; c)
its duly registered business name;
e) a consumer product or service has been supplied in
accordance with the previous representation when in d) the address of the manufacturer, importer, repacker of
fact it is not; the consumer product in the Philippines;
f) a consumer product or service can be supplied in a e)
its general make or active ingredients;
quantity greater than the supplier intends;
g) a service, or repair of a consumer product is needed f) the net quality of contents, in terms of weight, measure
when in fact it is not; or numerical count rounded off to at least the nearest
h) a specific price advantage of a consumer product exists tenths in the metric system;
when in fact it does not; g)
country of manufacture, if imported; and
i) the sales act or practice involves or does not involve a
warranty, a disclaimer of warranties, particular warranty h) if a consumer product is manufactured, refilled or
terms or other rights, remedies or obligations if the repacked under license from a principal, the label shall
indication is false; and so state the fact.
j) the seller or supplier has a sponsorship, approval, or
affiliation he does not have. The following may be required by the concerned department
in accordance with the rules and regulations they will
promulgate under authority of this Act:
a)
whether it is flammable or inflammable;
ARTICLE 80. Special Packaging of Consumer Products for
b) the Protection of Children. -- The concerned department may
directions for use, if necessary;
establish standards for the special packaging of any consumer
c) product if it finds that:
warning of toxicity;
d) a) the degree or nature of the hazard to children in the
wattage, voltage or amperes; or
availability of such product, by reason of its packaging,
e) is such that special packaging is required to protect
process of manufacture used if necessary.
children from serious personal injury or serious illness
resulting from handling and use of such product; and
Any word, statement or other information required by or under b) the special packaging to be required by such standard is
authority of the preceding paragraph shall appear on the label technically feasible, practicable and appropriate for such
or labeling with such conspicuousness as compared with other product. In establishing a standard under this Article, the
words, statements, designs or devices therein, and in such concerned department shall consider:
terms as to render it likely to be read and understood by the 1)
ordinary individual under customary conditions of purchase or the reasonableness of such standard;
use. 2) available scientific, medical and engineering data
concerning special packaging and concerning
The above requirements shall form an integral part of the label accidental, ingestions, illnesses and injuries caused by
without danger of being erased or detached under ordinary consumer product;
handling of the product. 3) the manufacturing practices of industries affected by
this Article; and
ARTICLE 78. Philippine Product Standard Mark. -- The label 4) the nature and use of consumer products.
may contain the Philippine Product Standard Mark if it is
certified to have passed the consumer product standard
prescribed by the concerned department.
ARTICLE 81. Price Tag Requirement. -- It shall be unlawful
to offer any consumer product for retail sale to the public
ARTICLE 79. Authority of the Concerned Department to
without an appropriate price tag, label or marking publicly
Provide for Additional Labeling and Packaging Requirements.
displayed to indicate the price of each article and said products
-- Whenever the concerned department determines that
shall not be sold at a price higher than that stated therein and
regulations containing requirements other than those
without discrimination to all buyers: Provided, That lumber
prescribed in Article 77 hereof are necessary to prevent the
sold, displayed or offered for sale to the public shall be tagged
deception of the consumer or to facilitate value comparisons
or labeled by indicating thereon the price and the
as to any consumer product, it may issue such rules and
corresponding official name of the wood: Provided, further,
regulations to:
That if consumer products for sale are too small or the nature
of which makes it impractical to place a price tag thereon price
a) establish and define standards for characterization of the
list placed at the nearest point where the products are
size of a package enclosing any consumer product
displayed indicating the retail price of the same may suffice.
which may be used to supplement the label statement of
net quality, of contents of packages containing such
ARTICLE 82. Manner of Placing Price Tags. -- Price tags,
products but this clause shall not be construed as
labels or markings must be written clearly, indicating the price
authorizing any limitation on the size, shape, weight,
of the consumer product per unit in pesos and centavos.
dimensions, or number of packages which may be used
to enclose any product;
ARTICLE 83. Regulations for Price Tag Placement. -- The
b) regulate the placement upon any package containing any
concerned department shall prescribe rules and regulations for
product or upon any label affixed to such product of any
the visible placement of price tags for specific consumer
printed matter stating or representing by implication that
products and services. There shall be no erasures or alterations
such product is offered for retail at a price lower than
of any sort of price tags, labels or markings.
the ordinary and customary retail price or that a price
advantage is accorded to purchases thereof by reason of
ARTICLE 84. Additional Labeling Requirements for Food. --
the size of the package or the quantity of its contents;
The following additional labeling requirements shall be
c) prevent the nonfunctional slack-fill of packages
imposed by the concerned department for food:
containing consumer products.
a)
For purposes of paragraph (c) of this Article, a package shall expiry or expiration date, where applicable;
be deemed to be nonfunctionally slack-filled if it is filled to
b) whether the consumer product is semi-processed, fully
substantially less than its capacity for reasons other than (1)
processed, ready-to-cook, ready-to-eat, prepared food or
protection of the contents of such package, (2) the
just plain mixture;
requirements of machines used for enclosing the contents in
c)
such package, or (3) inherent characteristics of package nutritive value, if any;
materials or construction being used.
d) whether the ingredients used are natural or synthetic, as the common or usual name of the food, if there be
1)
the case may be; any; and
e) such other labeling requirements as the concerned 2) in case it is manufactured or processed from two
department may deem necessary and reasonable. or more ingredients, the common or usual name
of such ingredient; except the spices, flavorings
ARTICLE 85. Mislabeled Food. -- A food shall also be and colorings other than those sold as such, may
deemed mislabeled: be designated as spices, flavorings and colorings
without naming each: Provided, That to the extent
a) if its labeling or advertising is false or misleading in any that compliance with the requirement of clause
way; (2) of this paragraph is impracticable or results in
b) deception or unfair competition, exemptions shall
if it is offered for sale under the name of another food;
be established by regulations promulgated by the
c) if it is an imitation of another food, unless its label bears concerned department of health;
in type of uniform size and prominence, the word j) if it purports to be or is represented for special dietary
"imitation" and, immediately thereafter, the name of the uses, unless its label bears such information concerning
food imitated; its vitamin or mineral or other dietary properties as the
d) its containers is so made, formed, or filled as to be concerned department determines to be, or by
misleading; regulations prescribed as necessary in order fully to
e) if in package form unless it bears a label conforming to inform purchasers as its value for such uses;
the requirements of this Act: Provided, That reasonable k) if it bears or contains any artificial flavoring, artificial
variation on the requirements of labeling shall be coloring, or chemical preservative, unless it bears
permitted and exemptions as to small packages shall be labeling, stating that fact: Provided, That to the extent
established by the regulations prescribed by the that compliance with the requirements of this paragraph
concerned department of health; is impracticable, exemptions shall be established by
regulations promulgated by the concerned department.
f) if any word, statement or other information required by The provisions of this paragraph or paragraphs (g) and
or under authority of this Act to appear on the principal (i) with respect to the artificial coloring shall not apply
display panel of the label or labeling is not prominently in the case of butter, cheese or ice cream.
placed thereon with such conspicuousness as compared
with other words, statements, designs or devices in the
labeling and in such terms as to render it likely to be
read and understood by the ordinary individual under 806 Phil. 822
customary conditions of purchase and use;
g) if it purports to be or is represented as a food for which
a definition or standard of identity has been prescribed EN BANC
unless: [A.M. No. 10-4-19-SC, March 07, 2017]
1) RE: LETTER OF TONY Q. VALENCIANO, HOLDING OF
it conforms to such definition and standard; and
RELIGIOUS RITUALS AT THE HALL OF JUSTICE
2) its labels bears the name of the food specified in BUILDING IN QUEZON CITY
the definition
or standards, and insofar as may be required by such RESOLUTION
regulations, the common names of optional ingredients
other than spices, flavoring and coloring, present in such MENDOZA, J.:
food;
h) One of our fundamental differences lies in our chosen
if it purports to be or represented as:
religion. Some put their faith in a god different from ours,
1) a food for which a standard of quality has been while some may not believe in a god at all. Nevertheless,
prescribed by regulations as provided in this Act despite the inconveniences this difference may cause us, we
and its quality fall below such standard, unless its must accept it unconditionally for only upon acceptance of the
label bears in such manner and form as such fact that we are different from each other will we learn to
regulations specify, a statement that it falls below respect one another.
such standard; or This controversy originated from a series of letters, written by
2) a food for which a standard or standards or fill of Tony Q. Valenciano (Valenciano) and addressed to then Chief
container have been prescribed by regulations as Justice Reynato S. Puno (Chief Justice Puno).
provided by this Act and it falls below the
standard of fill of container applicable thereto, In his first Letter,[1] dated January 6, 2009, Valenciano reported
unless its label bears, in such manner and form as that the basement of the Hall of Justice of Quezon City (QC)
such regulations specify, a statement that it falls had been converted into a Roman Catholic Chapel, complete
below such standard; with offertory table, images of Catholic religious icons, a
i) if it is not subject to the provisions of paragraph (g) of canopy, an electric organ, and a projector. He believed that
this Article unless its label bears: such practice violated the constitutional provision on the
separation of Church and State and the constitutional
prohibition against the appropriation of public money or On March 23, 2010, Valenciano wrote another letter, [7] praying
property for the benefit of a sect, church, denomination, or any that rules be promulgated by the Court to put a stop to the
other system of religion. holding of Catholic masses, or any other religious rituals, at
the QC Hall of Justice and in all other halls of justice in the
Valenciano further averred that the holding of masses at the country.
basement of the QC Hall of Justice showed that it tended to
favor Catholic litigants; that the rehearsals of the choir caused In its June 22, 2010 Resolution,[8] the Court noted the March
great disturbance to other employees; that the public could no 23, 2010 letter of Valenciano and referred the matter to the
longer use the basement as resting place; that the employees Office of the Court Administrator (DCA) for evaluation, report
and litigants of the Public Attorney's Office (PAO), Branches and recommendation.
82 and 83 of the Regional Trial Court (RTC), Legal Library,
Philippine Mediation Center, and Records Section of the Thus, in its 1st Indorsement,[9] dated September 6, 2010, the
Office of the Clerk of Court (OCC) could not attend to their OCA, through then Assistant Court Administrator (ACA)
personal necessities such as going to the lavatories because Jenny Lind R. Aldecoa-Delorino (now Deputy Court
they could not traverse the basement between 12:00 o'clock Administrator), referred the letters of Valenciano to the
noontime and 1:15 o'clock in the afternoon; that the court incumbent RTC Executive Judge Fernando T. Sagun, Jr.
employees became hostile toward each other as they vied for (Judge Sagun, Jr.) and incumbent MeTC Executive Judge
the right to read the epistle; and that the water supply in the Caridad M. Walse-Lutero (Judge Lutero).
entire building was cut off during the mass because the
generator was turned off to ensure silence. In his Letter-Comment,[10] dated September 9, 2010, Judge
Sagun, Jr. informed the Court that his office had already
In his 1st Indorsement,[2] dated February 6, 2009, Chief Justice implemented measures to address Valenciano's complaints. He
Puno referred Valenciano's letter to then Deputy Court reported that masses were shortened to a little over thirty (30)
Administrator (DCA) and Officer-in-Charge of the Office on minutes; that it was only during special holy days of obligation
Halls of Justice, Antonio H. Dujua (DCA Dujua). when the celebration of mass went beyond one (1) o'clock in
the afternoon; that the pathways leading to the lavatories were
In turn, DCA Dujua, in his 1 st Indorsement,[3] dated February open and could be used without obstruction; that there was
11, 2009, referred the letter to Executive Judge Teodoro A. never an instance where the actions of court personnel, who
Bay (Judge Bay) of the RTC and to Executive Judge Luis were vying to read the epistle during mass, caused back-biting
Zenon Q. Maceren (Judge Maceren) of the Metropolitan Trial and irritation among themselves; that the water generator had
Court (MeTC) for their respective comments. been broken beyond repair and decommissioned since
December 2009; and that the court employees prepared for the
In his March 6, 2009 Letter,[4] addressed to DCA Dujua, Judge mass before the day officially started, so that the performance
Maceren clarified that the basement of the QC Hall of Justice of their official duties in court was not hampered.
was known as the prayer comer. He opined that the use of the
said area for holding masses did not violate the constitutional In her letter,[11] Judge Lutero reported that Catholic masses
prohibition against the use of public property for religious were being held only during lunch breaks and did not disturb
purposes because the religious character of such use was court proceedings; that the basement of the QC Hall of Justice
merely incidental to a temporary use. could still be used as waiting area for the public; that court
personnel and the public were never physically prevented from
In his Memorandum,[5] dated March 10, 2009, Judge Bay reaching the lavatories during mass as there was a clear path
manifested that he was due to compulsorily retire on April 29, from the public offices leading to the comfort rooms; that
2009, and he was taking a leave of absence prior to such date water service interruptions were caused by maintenance
to concentrate in resolving cases submitted for decision before problems and not because the water pump was being shut off
his sala and requested that then Vice-Executive Judge Jaime during mass; and that the elevators could not be used during
N. Salazar (Judge Salazar) be assigned to further investigate, mass because elevator attendants took their lunch break from
study, and make recommendations on the matter raised by twelve (12) o'clock to one (1) o'clock in the afternoon.
Valenciano.
Judge Lutero opined that it is not the conduct of masses in
In the meantime, Judge Bay recommended that, pending the public places which the Constitution prohibited, but the
final resolution of the case, daily masses be permitted to passage of laws or the use of public funds for the purpose of
continue, provided that: (1) the mass be limited to thirty (30) establishing a religion or prohibiting the free exercise thereof.
minutes; (2) no loud singing be allowed so as not to disturb She conveyed the fact that no law or rule had been passed and
others; and (3) the inconveniences caused by the mass be that no public funds had been appropriated or used to support
addressed. the celebration of masses. She added that the holding of
Catholic masses did not mean that Catholics had better
In his 1st Indorsement,[6] dated May 27, 2009, Chief Justice chances of obtaining favorable resolutions from the court.
Puno referred another letter of Valenciano, dated May 13,
2009, to DCA Dujua for appropriate action, as he complained Accordingly, Judge Lutero recommended that the holding of
that masses continued to be held at the basement of the QC masses at the basement of the QC Hall of Justice be allowed to
Hall of Justice. continue considering that it was not inimical to the interests of
the court employees and the public. PROHIBITION AGAINST APPROPRIATION OF
PUBLIC MONEY OR PROPERTY FOR THE BENEFIT
The OCA Report and Recommendation OF ANY SECT, CHURCH, DENOMINATION,
SECTARIAN INSTITUTION, OR SYSTEM OF
In its Memorandum,[12] dated August 7, 2014, the OCA RELIGION.
believed that the practical inconveniences cited by Valenciano
were unfounded. It, thus, recommended that his letter- The Court's Ruling
complaints, dated January 6, 2009, May 13, 2009 and March
23, 2010, be dismissed for lack of merit and that the RTC and The Court agrees with the findings and recommendation of the
MeTC Executive Judges of QC be directed to closely regulate OCA and denies the prayer of Valenciano that the holding of
and monitor the holding of masses and other religious religious rituals of any of the world's religions in the QC Hall
practices within the premises of the QC Hall of Justice. of Justice or any halls of justice all over the country be
prohibited.
The OCA opined that the principle of separation of Church
and State, particularly with reference to the Establishment The Holding of Religious Rituals in the Halls of Justice does
Clause, ought not to be interpreted according to the rigid not Amount to a Union of Church and State
standards of separation; that the neutrality of the State on
religion should be benevolent because religion was an As earlier stated, Valenciano is against the holding of religious
ingrained part of society and played an important role in it; rituals in the halls of justice on the ground that it violates the
and that the State, therefore, instead of being belligerent (in constitutional provision on the separation of Church and State
the case of Strict Separation) or being aloof (in the case of and the constitutional prohibition against the appropriation of
Strict Neutrality) towards religion should instead interact and public money or property for the benefit of a sect, church,
forbear.[13] denomination, or any other system of religion. Indeed, Section
6, Article II of the 1987 Constitution provides:
The OCA advanced the view that the standard of Benevolent
Neutrality/Accommodation was espoused because the The separation of Church and State shall be inviolable. [17]
principal religion clauses in our Constitution were not limited
to the Establishment Clause, which created a wall between the The Court once pronounced that "our history, not to speak of
Church and the State, but was quickly followed by the the history of mankind, has taught us that the union of church
declaration of the Free Exercise Clause, which protected the and state is prejudicial to both, for occasions might arise when
right of the people to practice their religion. In effect, the the state will use the church, and the church the state, as a
standard of Benevolent Neutrality/Accommodation balanced weapon in the furtherance of their respective ends and
the interest of the State through the Establishment Clause, and aims."[18]
the interest and right of the individual to freely exercise his
religion as guaranteed by the Free Exercise Clause. [14] Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying,
The OCA observed that the present controversy did not "Strong fences make good neighbors." The idea is to delineate
involve a national or local law or regulation in conflict with the boundaries between the two institutions and, thus, avoid
the Free Exercise Clause. On the contrary, Valenciano was encroachments by one against the other because of a
merely questioning the propriety of holding religious masses misunderstanding of the limits of their respective exclusive
at the basement of the QC Hall of Justice, which was nothing jurisdictions. The demarcation line calls on the entities to
more than an issue of whether the said religious practice could "render therefore unto Caesar the things that are Caesar's and
be accommodated or not. It ended up concluding that based on unto God the things that are God's."[19]
prevailing jurisprudence, as well as the interpretations given to This, notwithstanding, the State still recognizes the inherent
the religion clauses of the 1987 Constitution, there was right of the people to have some form of belief system,
nothing constitutionally abhorrent in allowing the continuation whether such may be belief in a Supreme Being, a certain way
of the masses.[15] of life, or even an outright rejection of religion. Our very own
Constitution recognizes the heterogeneity and religiosity of
The OCA added that by allowing or accommodating the our people as reflected in Imbong v. Ochoa,[20]as follows:
celebration of Catholic masses within the premises of the QC At the outset, it cannot be denied that we all live in a
Hall of Justice, the Court could not be said to have established heterogeneous society. It is made up of people of diverse
Roman Catholicism as an official religion or to have endorsed ethnic, cultural and religious beliefs and backgrounds. History
the said religion, for the reason that it also allowed other has shown us that our government, in law and in practice, has
religious denominations to practice their religion within the allowed these various religious, cultural, social and racial
courthouses.[16] groups to thrive in a single society together. It has embraced
ISSUE minority groups and is tolerant towards all - the religious
people of different sects and the non-believers. The undisputed
WHETHER THE HOLDING OF MASSES AT THE fact is that our people generally believe in a deity, whatever
BASEMENT OF THE QUEZON CITY HALL OF they conceived Him to be, and to Whom they called for
JUSTICE VIOLATES THE CONSTITUTIONAL guidance and enlightenment in crafting our fundamental law.
PRINCIPLE OF SEPARATION OF CHURCH AND Thus, the preamble of the present Constitution reads:
STATE AS WELL AS THE CONSTITUTIONAL
We, the sovereign Filipino people, imploring the aid of Thus, the right to believe or not to believe has again been
Almighty God, in order to build a just and humane society, enshrined in Section 5, Article III of the 1987 Constitution:
and establish a Government that shall embody our ideals and Section 5. xxx. The free exercise and enjoyment of religious
aspirations, promote the common good, conserve and develop profession and worship, without discrimination or
our patrimony, and secure to ourselves and our posterity, the preference, shall forever be allowed. xxx.
blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and Free Exercise Clause
peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God" Freedom of religion was accorded preferred status by the
manifested their spirituality innate in our nature and framers of our fundamental law. And this Court has
consciousness as a people, shaped by tradition and consistently affirmed this preferred status, well aware that it is
historical experience. As this is embodied in the preamble, "designed to protect the broadest possible liberty of
it means that the State recognizes with respect the conscience, to allow each man to believe as his conscience
influence of religion in so far as it instills into the mind the directs, to profess his beliefs, and to live as he believes he
purest principles of morality. Moreover, in recognition of the ought to live, consistent with the liberty of others and with the
contributions of religion to society, the 1935, 1973 and 1987 common good."[23]
Constitutions contain benevolent and accommodating
provisions towards religions such as tax exemption of church "The right to religious profession and worship has a two-fold
property, salary of religious officers in government aspect freedom to believe and freedom to act on one's beliefs.
institutions, and optional religious instructions in public The first is absolute as long as the belief is confined within the
schools. [Emphases supplied] realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public
In Aglipay v. Ruiz[21] (Aglipay), the Court acknowledged how welfare."[24] Justice Isagani A. Cruz explained these two (2)
religion could serve as a motivating force behind each person's concepts in this wise:
actions:
Religious freedom, however, as a constitutional mandate is not (1) Freedom to Believe
inhibition of profound reverence for religion and is not a
denial of its influence in human affairs. Religion as a The individual is free to believe (or disbelieve) as he pleases
profession of faith to an active power that binds and elevates concerning the hereafter. He may indulge his own theories
man to his Creator is recognized. And, in so far as it instills about life and death; worship any god he chooses, or none at
into the minds the purest principles of morality, its influence is all; embrace or reject any religion; acknowledge the divinity
deeply felt and highly appreciated. When the Filipino people, of God or of any being that appeals to his reverence; recognize
in the preamble of their Constitution, implored "the aid or deny the immortality of his soul - in fact, cherish any
of Divine Providence, in order to establish a government religious conviction as he and he alone sees fit. However
that shall embody their ideals, conserve and develop the absurd his beliefs may be to others, even if they be hostile and
patrimony of the nation, promote the general welfare, and heretical to the majority, he has full freedom to believe as he
secure to themselves and their posterity the blessings of pleases. He may not be required to prove his beliefs. He may
independence under a regime of justice, liberty and not be punished for his inability to do so. Religion, after all, is
democracy," they thereby manifested their intense a matter of faith. "Men may believe what they cannot prove."
religious nature and placed unfaltering reliance upon Him Every one has a right to his beliefs and he may not be called to
who guides the destinies of men and nations. The elevating account because he cannot prove what he believes.
influence of religion in human society is recognized here as
elsewhere. In fact, certain general concessions are (2) Freedom to Act on One's Beliefs
indiscriminately accorded to religious sects and
denominations. Our Constitution and laws exempt from But where the individual externalizes his beliefs in acts or
taxation properties devoted exclusively to religious purposes omissions that affect the public, his freedom to do so becomes
(sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and subject to the authority of the State. As great as this liberty
sec. 1, subsec. Ordinance appended thereto; Assessment Law, may be, religious freedom, like all other rights guaranteed in
sec. 344, par [c], Adm. Code) sectarian aid is not prohibited the Constitution, can be enjoyed only with a proper regard for
when a priest, preacher, minister or other religious teacher or the rights of others.
dignitary as such is assigned to the armed forces or to any
penal institution, orphanage or leprosarium xxx. Optional It is error to think that the mere invocation of religious
religious instruction in the public schools is by constitutional freedom will stalemate the State and render it impotent in
mandate allowed xxx. Thursday and Friday of Holy Week, protecting the general welfare. The inherent police power can
Thanksgiving Day, Christmas Day, and Sundays are made be exercised to prevent religious practices inimical to society.
legal holidays (sec. 29, Adm. Code) because of the secular And this is true even if such practices are pursued out of
idea that their observance is conducive to beneficial moral sincere religious conviction and not merely for the purpose of
results. The law allows divorce but punishes polygamy and evading the reasonable requirements or prohibitions of the
bigamy; and certain crimes against religious worship are law.
considered crimes against the fundamental laws of the state
xxx.[22] [Emphasis supplied] Justice Frankfurter put it succinctly: "The constitutional
provision on religious freedom terminated disabilities, it did
not create new privileges. It gave religious liberty, not civil state can prevail over the fundamental right to religious
immunity. Its essence is freedom from conformity to religious liberty. The test requires the state to carry a heavy burden, a
dogma, not freedom from conformity to law because of compelling one, for to do otherwise would allow the state to
religious dogma."[25] batter religion, especially the less powerful ones until they are
Allowing religion to flourish is not contrary to the principle of destroyed. In determining which shall prevail between the
separation of Church and State. In fact, these two principles state's interest and religious liberty, reasonableness shall be the
are in perfect harmony with each other. guide. The "compelling state interest" serves the purpose of
revering religious liberty while at the same time affording
The State is aware of the existence of religious movements protection to the paramount interests of the state. This was the
whose members believe in the divinity of Jose Rizal. Yet, it test used in Sherbert which involved conduct, i.e. refusal to
does not implement measures to suppress the said religious work on Saturdays. In the end, the "compelling state interest"
sects. Such inaction or indifference on the part of the State test, by upholding the paramount interests of the state, seeks to
gives meaning to the separation of Church and State, and at protect the very state, without which, religious liberty will not
the same time, recognizes the religious freedom of the be preserved.137 [Citations omitted] [Emphases supplied]
members of these sects to worship their own Supreme Being. As reported by the Executive Judges of Quezon City, the
masses were being conducted only during noon breaks and
As pointed out by Judge Lutero, "the Roman Catholics express were not disruptive of public services. The court proceedings
their worship through the holy mass and to stop these would were not being distracted or interrupted and that the
be tantamount to repressing the right to the free exercise of performance of the judiciary employees were not being
their religion. Our Muslim brethren, who are government adversely affected. Moreover, no Civil Service rules were
employees, are allowed to worship their Allah even during being violated. As there has been no detrimental effect on the
office hours inside their own offices. The Seventh Day public service or prejudice to the State, there is simply no state
Adventists are exempted from rendering Saturday duty interest compelling enough to prohibit the exercise of religious
because their religion prohibits them from working on a freedom in the halls of justice.
Saturday. Even Christians have been allowed to conduct their
own bible studies in their own offices. All these have been In fact, the Civil Service Commission (CSC) was more lenient
allowed in respect of the workers' right to the free exercise of or tolerant. On November 13, 1981, the CSC came out with
their religion. xxx"[26] Resolution No. 81-1277, which provided, among others, that
"during Friday, the Muslim pray day, Muslims are excused
Clearly, allowing the citizens to practice their religion is not from work from 10:00 o'clock in the morning to 2:00 o'clock
equivalent to a fusion of Church and State. in the afternoon." The Court struck this down [28]as not
sanctioned by the law. It wrote:
No Compelling State Interest To allow the Muslim employees in the Judiciary to be excused
from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim
Religious freedom, however, is not absolute. It cannot have its Prayer Day) during the entire calendar year would mean a
way if there is a compelling state interest. To successfully diminution of the prescribed government working hours. For
invoke compelling state interest, it must be demonstrated that then, they would be rendering service twelve (12) hours less
the masses in the QC Hall of Justice unduly disrupt the than that required by the civil service rules for each month.
delivery of public services or affect the judges and employees Further, this would encourage other religious denominations to
in the performance of their official functions. In Estrada v. request for similar treatment.
Escritor,[27] the Court expounded on the test as follows:
The "compelling state interest" test is proper where conduct is The performance of religious practices, whether by the
involved for the whole gamut of human conduct has different Muslim employees or those belonging to other religious
effects on the state's interests: some effects may be immediate denominations, should not prejudice the courts and the public.
and short-term while others delayed and far-reaching. A test Indeed, the exercise of religious freedom does not exempt
that would protect the interests of the state in preventing a anyone from compliance with reasonable requirements of the
substantive evil, whether immediate or delayed, is therefore law, including civil service laws.
necessary. However, not any interest of the state would suffice Accommodation, Not Establishment of Religion
to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the In order to give life to the constitutional right of freedom of
hierarchy of rights - "the most inalienable and sacred of all religion, the State adopts a policy of
human rights", in the words of Jefferson. This right is sacred accommodation. Accommodation is a recognition of the reality
for an invocation of the Free Exercise Clause is an appeal to a that some governmental measures may not be imposed on a
higher sovereignty. The entire constitutional order of limited certain portion of the population for the reason that these
government is premised upon an acknowledgment of such measures are contrary to their religious beliefs. As long as it
higher sovereignty, thus the Filipinos implore the "aid of can be shown that the exercise of the right does not impair the
Almighty God in order to build a just and humane society and public welfare, the attempt of the State to regulate or prohibit
establish a government." As held in Sherbert, only the gravest such right would be an unconstitutional encroachment. [29]
abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which In Estrada v. Escritor,[30] the Court adopted a policy of
balances a right with just a colorable state interest is therefore benevolent neutrality:
not appropriate. Instead, only a compelling interest of the
With religion looked upon with benevolence and not 2. During "Ramadan" the Fasting month (30 days) of the
hostility, benevolent neutrality allows accommodation of Muslims, the Civil Service official time of 8 o'clock to 12
religion under certain circumstances. Accommodations are o'clock and 1 o'clock to 5 o'clock is hereby modified to
government policies that take religion specifically into 7:30A.M. to 3:30 P.M. without noon break and the difference
account not to promote the government's favored form of of 2 hours is not counted as undertime.
religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect Following the decree, in Re: Request of Muslim Employees in
therefore is to remove a burden on, or facilitate the exercise of, the Different Courts in Iligan City (Re: Office Hours),[34] the
a person's or institution's religion. As Justice Brennan Court recognized that the observance of Ramadan as integral
explained, the "government [may] take religion into account ... to the Islamic faith and allowed Muslimemployees in the
to exempt, when possible, from generally applicable Judiciary to hold flexible office hours from 7:30 o'clock in the
governmental regulation individuals whose religious beliefs morning to 3:30 o'clock in the afternoon without any break
and practices would otherwise thereby be infringed, or to during the period. This is a clear case of accommodation
create without state involvement an atmosphere in which because Section 5, Rule XVII of the Omnibus Rules
voluntary religious exercise may flourish." [Emphases Implementing Book V of E.O. No. 292, enjoins all civil
supplied] servants, of whatever religious denomination, to render public
service of no less than eight (8) hours a day or forty (40) hours
In Victoriano v. Elizalde Rope Workers Union,[31] the Court a week.
upheld the exemption of members of Iglesia ni Cristo from the
coverage of a closed shop agreement between their employer Non-Establishment Clause
and a union, because it would violate the teaching of their
church not to affiliate with a labor organization. On the opposite side of the spectrum is the constitutional
mandate that "no law shall be made respecting an
In Ebralinag v. Division Superintendent of Schools of Cebu, establishment of religion,"[35] otherwise known as the non-
[32]
the petitioners, who were members of the Jehovah's establishment clause. Indeed, there is a thin line between
Witnesses, refused to salute the flag, sing the national anthem, accommodation and establishment, which makes it even more
and recite the patriotic pledge for it is their belief that those imperative to understand each of these concepts by placing
were acts of worship or religious devotion, which they could them in the Filipino society's perspective.
not conscientiously give to anyone or anything except God.
The Court accommodated them and granted them an The non-establishment clause reinforces the wall of separation
exemption from observing the flag ceremony out of respect for between Church and State. It simply means that the State
their religious beliefs. cannot set up a Church; nor pass laws which aid one religion,
aid all religion, or prefer one religion over another nor force
Further, several laws have been enacted to accommodate nor influence a person to go to or remain away from church
religion. The Revised Administrative Code of 1987 has against his will or force him to profess a belief or disbelief in
declared Maundy Thursday, Good Friday, and Christmas Day any religion; that the state cannot punish a person for
as regular holidays. Republic Act (R.A.) No. 9177 proclaimed entertaining or professing religious beliefs or disbeliefs, for
the first day of Shawwal, the tenth month of the Islamic church attendance or nonattendance; that no tax in any
Calendar, a national holiday for the observance of Eidul amount, large or small, can be levied to support any religious
Fitr (the end of Ramadan). R.A. No. 9849 declared the tenth activity or institution whatever they may be called or whatever
day of Zhul Hijja, the twelfth month of the Islamic Calendar, a form they may adopt or teach or practice religion; that the
national holiday for the observance of Eidul Adha. Presidential state cannot openly or secretly participate in the affairs of any
Decree (P.D.) No. 1083, otherwise known as the Code of religious organization or group and vice versa. [36] Its minimal
Muslim Personal Laws of the Philippines, expressly allows a sense is that the state cannot establish or sponsor an official
Filipino Muslim to have more than one (1) wife and exempts religion.[37]
him from the crime of bigamy punishable under Revised Penal
Code (RPC). The same Code allows Muslims to have divorce. In the same breath that the establishment clause restricts what
[33]
the government can do with religion, it also limits what
religious sects can or cannot do. They can neither cause the
As to Muslims in government offices, Section 3 of P.D. No. government to adopt their particular doctrines as policy for
291, as amended by P.D. No. 322, provides: everyone, nor can they cause the government to restrict other
Sec. 3. (a) During the fasting season on the month of groups. To do so, in simple terms, would cause the State to
Ramadan, all Muslim employees in the national government, adhere to a particular religion and, thus, establish a state
government-owned or controlled corporations, provinces, religion.[38]
cities, municipalities and other instrumentalities shall observe
office hours from seven-thirty in the morning (7:30 a.m.) to Father Bernas further elaborated on this matter, as follows:
three-thirty in the afternoon (3:30 p.m.) without lunch break or "In effect, what non-establishment calls for is government
coffee breaks, and that there shall be no diminution of salary neutrality in religious matters. Such government neutrality
or wages, provided, that the employee who is not fasting is not may be summarized in four general propositions: (1)
entitled to the benefit of this provision. Government must not prefer one religion over another or
Pursuant thereto, the CSC promulgated Resolution No. 81- religion over irreligion because such preference would violate
1277, dated November 13, 1981, which reads in part: voluntarism and breed dissension; (2) Government funds must
not be applied to religious purposes because this too would property for a distinct use, or for the payment of a particular
violate voluntarism and breed interfaith dissension; (3) demand."[41]
Government action must not aid religion because this too can
violate voluntarism and breed interfaith dissension; [and] (4) Under the principle of noscitur a sociis, where a particular
Government action must not result in excessive entanglement word or phrase is ambiguous in itself or is equally susceptible
with religion because this too can violate voluntarism and of various meanings, its correct construction may be made
breed interfaith dissension."[39] clear and specific by considering the company of words in
which it is found or with which it is associated. This is because
Establishment entails a positive action on the part of the State. a word or phrase in a statute is always used in association with
Accommodation, on the other hand, is passive. In the former, other words or phrases, and its meaning may, thus, be
the State becomes involved through the use of government modified or restricted by the latter. The particular words,
resources with the primary intention of setting up a state clauses and phrases should not be studied as detached and
religion. In the latter, the State, without being entangled, isolated expressions, but the whole and every part of the
merely gives consideration to its citizens who want to freely statute must be considered in fixing the meaning of any of its
exercise their religion. parts and in order to produce a harmonious whole. A statute
must be so construed as to harmonize and give effect to all its
In a September 12, 2003 Memorandum for Chief Justice provisions whenever possible.[42]
Hilario G. Davide, Jr., the Office of the Chief Attorney
recommended to deny, on constitutional grounds, the request Thus, the words "pay" and "employ" should be understood to
of Rev. Fr. Carlo M. Ilagan to hold a one-day vigil in honor of mean that what is prohibited is the use of public money or
the Our Lady of Caysasay within the premises of the Court. property for the sole purpose of benefiting or supporting any
Such controversy must be distinguished from the present issue church. The prohibition contemplates a scenario where the
in that with respect to the former, a Catholic priest was the one appropriation is primarily intended for the furtherance of a
who requested for the vigil. Moreover, in that case, the vigil particular church.
would take one (1) whole working day; whereas in this case,
the masses are held at the initiative of Catholic employees and It has also been held that the aforecited constitutional
only during the thirty-minute lunch break. provision "does not inhibit the use of public property for
religious purposes when the religious character of such use is
Guided by the foregoing, it is our considered view that the merely incidental to a temporary use which is available
holding of Catholic masses at the basement of the QC Hall of indiscriminately to the public in general." Hence, a public
Justice is not a case of establishment, but merely street may be used for a religious procession even as it is
accommodation. First, there is no law, ordinance or circular available for a civic parade, in the same way that a public
issued by any duly constitutive authorities expressly plaza is not barred to a religious rally if it may also be used for
mandating that judiciary employees attend the Catholic masses a political assemblage.[43]
at the basement. Second, when judiciary employees attend the
masses to profess their faith, it is at their own initiative as they In relation thereto, the phrase "directly or indirectly" refers to
are there on their own free will and volition, without any the manner of appropriation of public money or property, not
coercion from the judges or administrative officers. Third, no as to whether a particular act involves a direct or a mere
government funds are being spent because the lightings and incidental benefit to any church. Otherwise, the framers of the
airconditioning continue to be operational even if there are no Constitution would have placed it before "use, benefit or
religious rituals there. Fourth, the basement has neither been support" to describe the same. Even the exception to the same
converted into a Roman Catholic chapel nor has it been provision bolsters this interpretation. The exception
permanently appropriated for the exclusive use of its contemplates a situation wherein public funds are paid to a
faithful. Fifth, the allowance of the masses has not prejudiced priest, preacher, minister, or other religious teacher, or
other religions. dignitary because they rendered service in the armed forces, or
to any penal institution, or government orphanage or
No Appropriation of Public Money or Property for the Benefit leprosarium. That a priest belongs to a particular church and
of any Church the latter may have benefited from the money he received is of
no moment, for the purpose of the payment of public funds is
Section 29 (2), Article VI of the 1987 Constitution provides, merely to compensate the priest for services rendered and for
"No public money or property shall be appropriated, applied, which other persons, who will perform the same services will
paid, or employed, directly or indirectly, for the use, benefit, also be compensated in the same manner.
or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, Ut magis valeat quam pereat. The Constitution is to be
minister, or other religious teacher, or dignitary as such, except interpreted as a whole.[44] As such, the foregoing interpretation
when such priest, preacher, minister, or dignitary is assigned to finds support in the Establishment Clause, which is as clear as
the armed forces, or to any penal institution, or government daylight in stating that what is proscribed is the passage of any
orphanage or leprosarium." law which tends to establish a religion, not merely to
accommodate the free exercise thereof.
The word "apply" means "to use or employ for a particular
purpose."[40] "Appropriate" means "to prescribe a particular use The Constitution even grants tax exemption to properties
for particular moneys or to designate or destine a fund or actually, directly and exclusively devoted to religious
purposes.[45] Certainly, this benefits the religious sects for a no excessive entanglement
portion of what could have been collected for the benefit of
the public is surrendered in their favor. To disallow the holding of religious rituals within halls of
justice would set a dangerous precedent and commence a
In Manosca v. CA,[46] a parcel of land located in Taguig was domino effect. Strict separation, rather than benevolent
determined by the National Historical Institute to be the neutrality/accommodation, would be the norm. Thus, the
birthsite of Felix Y. Manalo, the founder of Iglesia ni Cristo. establishment of Shari'a courts, the National Commission for
The Republic then sought to expropriate the said property. The Muslim Filipinos, and the exception of Muslims from the
exercise of the power of eminent domain was questioned on provisions of the RPC relative to the crime of bigamy would
the ground that it would only benefit members of Iglesia ni all be rendered nugatory because of strict separation. The
Cristo. The Court upheld the legality of the expropriation, viz.: exception of members of Iglesia ni Cristo from joining a union
The practical reality that greater benefit may be derived by or the non-compulsion recognized in favor of members of the
members of the Iglesia ni Cristo than by most others could Jehovah's Witnesses from doing certain gestures during the
well be true but such a peculiar advantage still remains to flag ceremony, will all go down the drain simply because we
be merely incidental and secondary in nature.[47][Emphasis insist on strict separation.
supplied]
Again, in Aglipay, the issuing and selling of postage stamps That the holding of masses at the basement of the QC Hall of
commemorative of the Thirty-third International Eucharistic Justice may offend non-Catholics is no reason to proscribe it.
Congress was assailed on the ground that it violated the Our Constitution ensures and mandates an unconditional
constitutional prohibition against the appropriation of public tolerance, without regard to whether those who seek to profess
money or property for the benefit of any church. In ruling that their faith belong to the majority or to the minority. It is
there was no such violation, the Court held: emphatic in saying that "the free exercise and enjoyment of
It is obvious that while the issuance and sale of the stamps in religious profession and worship shall be without
question may be said to be inseparably linked with an event of discrimination or preference." Otherwise, accommodation or
a religious character, the resulting propaganda, if any, received tolerance would just be mere lip service.
by the Roman Catholic Church, was not the aim and purpose
of the Government. We are of the opinion that the Government One cannot espouse that the constitutional freedom of religion
should not be embarrassed in its activities simply because of ensures tolerance, but, in reality, refuses to practice what he
incidental results, more or less religious in character, if the preaches. One cannot ask for tolerance when he refuses to do
purpose had in view is one which could legitimately be the same for others.
undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordination to mere In fine, the Court denies the plea that the holding of Catholic
incidental results not contemplated.[48] [Emphasis supplied] masses at the basement of the QC Hall of Justice be prohibited
Here, the basement of the QC Hall of Justice is not because the said practice does not violate the constitutional
appropriated, applied or employed for the sole purpose of principle of separation of Church and State and the
supporting the Roman Catholics constitutional prohibition against appropriation of public
money or property for the benefit of a sect, church,
Further, it has not been converted into a Roman Catholic denomination, or any other system of religion.
chapel for the exclusive use of its faithful contrary to the claim
of Valenciano. Judge Maceren reported that the basement is WHEREFORE, the Court resolves to:
also being used as a public waiting area for most of the day 1. NOTE the letter-complaints of Mr. Tony Q.
and a meeting place for different employee organizations. The Valenciano, dated January 6, 2009, May 13, 2009, and
use of the area for holding masses is limited to lunch break March 23, 2010;
period from twelve (12) o'clock to one (1) o'clock in the 2. NOTE the 1st Indorsement, dated September 21,
afternoon. Further, Judge Sagun, Jr. related that masses run for 2010, by the Office on Halls of Justice, containing
just a little over thirty (30) minutes. It is, therefore, clear that photocopies and certified photocopies of previous actions
no undue religious bias is being committed when the subject made relative to the complaint;
basement is allowed to be temporarily used by the Catholics to 3. NOTE the Letter-Comment, dated September 9,
celebrate mass, as the same area can be used by other groups 2010, of Quezon City Regional Trial Court Executive
of people and for other purposes.[49] Thus, the basement of the Judge Fernando T. Sagun, Jr.;
QC Hall of Justice has remained to be a public property 4. NOTE the undated Letter-Comment of Quezon City
devoted for public use because the holding of Catholic masses Metropolitan Trial Court Executive Judge Caridad M.
therein is a mere incidental consequence of its primary Walse-Lutero;
purpose. 5. DENY the prayer of Tony Q. Valenciano to prohibit
the holding of religious rituals in the QC Hall of Justice
Conclusion and in all halls of justice in the country; and
6. DIRECT the Executive Judges of Quezon City
Directing the Executive Judges of the RTC and MeTC to to REGULATE and CLOSELY MONITOR the holding
regulate and closely monitor the holding of masses and other of masses and other religious practices within the Quezon
religious practices within the courts does not promote City Hall of Justice by ensuring, among others, that:
excessive collaboration between courts and various religions. (a) it does not disturb or interrupt court proceedings;
On the contrary, this is necessary to ensure that there would be
(b)it does not adversely affect and interrupt the delivery of In a sworn-letter complaint dated July 27, 2000, complainant
public service; and Alejandro Estrada requested Judge Jose F. Caoibes, Jr.,
(c) it does not unduly inconvenience the public. presiding judge of Branch 253, Regional Trial Court of Las
Piñas City, for an investigation of respondent Soledad Escritor,
In no case shall a particular part of a public building be a court interpreter in said court, for living with a man not her
permanent place for worship for the benefit of any and all husband, and having borne a child within this live-in
religious groups. There shall also be no permanent display of arrangement. Estrada believes that Escritor is committing an
religious icons in all halls of justice in the country. In case of immoral act that tarnishes the image of the court, thus she
religious rituals, religious icons and images may be displayed should not be allowed to remain employed therein as it
but their presentation is limited only during the celebration of might appear that the court condones her act.[2] Consequently,
such activities so as not to offend the sensibilities of members respondent was charged with committing "disgraceful and
of other religious denominations or the non-religious public. immoral conduct" under Book V, Title I, Chapter VI, Sec.
After any religious affair, the icons and images shall be hidden 46(b)(5) of the Revised Administrative Code. [3]
or concealed from public view.
Respondent Escritor testified that when she entered the
The disposition in this administrative matter shall apply to all judiciary in 1999, she was already a widow, her husband
halls of justice in the country. Other churches, religious having died in 1998.[4] She admitted that she started living
denominations or sects are entitled to the same rights, with Luciano Quilapio, Jr. without the benefit of marriage
privileges, and practices in every hall of justice. In other more than twenty years ago when her husband was still alive
buildings not owned or controlled by the Judiciary, the but living with another woman. She also admitted that she and
Executive Judges should coordinate and seek approval of the Quilapio have a son.[5] But as a member of the religious sect
building owners/administrators accommodating their courts. known as the Jehovah's Witnesses and the Watch Tower and
Bible Tract Society, respondent asserted that their conjugal
SO ORDERED. arrangement is in conformity with their religious beliefs and
has the approval of her congregation.[6] In fact, after ten
Sereno, C. J., Carpio, Velasco, Jr., Peralta, Bersamin, Del years of living together, she executed on July 28, 1991, a
Castillo, Reyes, and Perlas-Bernabe, JJ., concur. "Declaration of Pledging Faithfulness."[7]
Leonardo-De Castro, J., Please see my Separate Concurring
Opinion. For Jehovah's Witnesses, the Declaration allows members of
Leonen, J., I dissent. See Separate Opinion. the congregation who have been abandoned by their spouses
Jardeleza, J., See Separate Opinion. to enter into marital relations. The Declaration thus makes the
Caguioa, J., I concur of Separate Opinion of J. Jardeleza. resulting union moral and binding within the congregation all
over the world except in countries where divorce is allowed.
525 Phil. 110 As laid out by the tenets of their faith, the Jehovah's
congregation requires that at the time the declarations are
EN BANC executed, the couple cannot secure the civil authorities'
[ A.M. NO. P-02-1651 (FORMERLY OCA I.P.I NO. 00- approval of the marital relationship because of legal
1021-P), June 22, 2006 ] impediments. Only couples who have been baptized and in
ALEJANDRO ESTRADA, COMPLAINANT, VS. good standing may execute the Declaration, which requires the
SOLEDAD S. ESCRITOR, RESPONDENT. approval of the elders of the congregation. As a matter of
practice, the marital status of the declarants and their
RE SOLUTION respective spouses' commission of adultery are investigated
before the declarations are executed.[8] Escritor and Quilapio's
PUNO, J.: declarations were executed in the usual and approved form
prescribed by the Jehovah's Witnesses,[9] approved by elders
While man is finite, he seeks and subscribes to the Infinite. of the congregation where the declarations were executed,[10]
Respondent Soledad Escritor once again stands before the and recorded in the Watch Tower Central Office.[11]
Court invoking her religious freedom and her Jehovah God in
a bid to save her family - united without the benefit of legal Moreover, the Jehovah's congregation believes that once all
marriage - and livelihood. The State, on the other hand, seeks legal impediments for the couple are lifted, the validity of the
to wield its power to regulate her behavior and protect its declarations ceases, and the couple should legalize their union.
interest in marriage and family and the integrity of the courts In Escritor's case, although she was widowed in 1998, thereby
where respondent is an employee. How the Court will tilt the lifting the legal impediment to marry on her part, her mate was
scales of justice in the case at bar will decide not only the fate still not capacitated to remarry. Thus, their declarations
of respondent Escritor but of other believers coming to Court remained valid.[12] In sum, therefore, insofar as the
bearing grievances on their free exercise of religion. This case congregation is concerned, there is nothing immoral about the
comes to us from our remand to the Office of the Court conjugal arrangement between Escritor and Quilapio and they
Administrator on August 4, 2003.[1] remain members in good standing in the congregation.

I. THE PAST PROCEEDINGS By invoking the religious beliefs, practices and moral
standards of her congregation, in asserting that her conjugal
arrangement does not constitute disgraceful and immoral
conduct for which she should be held administratively liable, assailing this ruling, the same has attained finality and
[13] the Court had to determine the contours of religious constitutes the law of the case. Any attempt to reopen this
freedom under Article III, Section 5 of the Constitution, which final ruling constitutes a crass contravention of elementary
provides, viz: rules of procedure. Worse, insofar as it would overturn the
Sec. 5. No law shall be made respecting an establishment of parties' right to rely upon our interpretation which has long
religion, or prohibiting the free exercise thereof. The free attained finality, it also runs counter to substantive due
exercise and enjoyment of religious profession and worship, process.
without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil or Be that as it may, even assuming that there were no procedural
political rights. and substantive infirmities in Mr. Justice Carpio's belated
A. RULING attempts to disturb settled issues, and that he had timely
presented his arguments, the results would still be the same.
In our decision dated August 4, 2003, after a long and arduous
scrutiny into the origins and development of the religion We review the highlights of our decision dated August 4,
clauses in the United States (U.S.) and the Philippines, we 2003.
held that in resolving claims involving religious freedom (1)
benevolent neutrality or accommodation, whether mandatory 1. Old World Antecedents
or permissive, is the spirit, intent and framework underlying
the religion clauses in our Constitution; and (2) in deciding In our August 4, 2003 decision, we made a painstaking review
respondent's plea of exemption based on the Free Exercise of Old World antecedents of the religion clauses, because "one
Clause (from the law with which she is administratively cannot understand, much less intelligently criticize the
charged), it is the compelling state interest test, the strictest approaches of the courts and the political branches to religious
test, which must be applied.[14] freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient
Notwithstanding the above rulings, the Court could not, at that and medieval world and in the American experience."[17] We
time, rule definitively on the ultimate issue of whether delved into the conception of religion from primitive times,
respondent was to be held administratively liable for there was when it started out as the state itself, when the authority and
need to give the State the opportunity to adduce evidence that power of the state were ascribed to God.[18] Then, religion
it has a more "compelling interest" to defeat the claim of the developed on its own and became superior to the state,[19] its
respondent to religious freedom. Thus, in the decision dated subordinate,[20] and even becoming an engine of state policy.
August 4, 2003, we remanded the complaint to the Office of [21]
the Court Administrator (OCA), and ordered the Office of the
Solicitor General (OSG) to intervene in the case so it can: We ascertained two salient features in the review of religious
(a) examine the sincerity and centrality of history: First, with minor exceptions, the history of church-
respondent's claimed religious belief and practice; state relationships was characterized by persecution,
(b) present evidence on the state's "compelling oppression, hatred, bloodshed, and war, all in the name of the
interest" to override respondent's religious belief and practice; God of Love and of the Prince of Peace. Second, likewise
and with minor exceptions, this history witnessed the unscrupulous
(c) show that the means the state adopts in use of religion by secular powers to promote secular purposes
pursuing its interest is the least restrictive to respondent's and policies, and the willing acceptance of that role by the
religious freedom. [15] vanguards of religion in exchange for the favors and mundane
It bears stressing, therefore, that the residual issues of the case benefits conferred by ambitious princes and emperors in
pertained NOT TO WHAT APPROACH THIS COURT exchange for religion's invaluable service. This was the
SHOULD TAKE IN CONSTRUING THE RELIGION context in which the unique experiment of the principle of
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN religious freedom and separation of church and state saw its
DETERMINING CLAIMS OF EXEMPTION BASED ON birth in American constitutional democracy and in human
FREEDOM OF RELIGION. These issues have already been history. [22]
ruled upon prior to the remand, and constitute "the law of the
case" insofar as they resolved the issues of which framework Strictly speaking, the American experiment of freedom and
and test are to be applied in this case, and no motion for its separation was not translated in the First Amendment. That
reconsideration having been filed.[16] The only task that the experiment had been launched four years earlier, when the
Court is left to do is to determine whether the evidence founders of the republic carefully withheld from the new
adduced by the State proves its more compelling interest. This national government any power to deal with religion. As
issue involves a pure question of fact. James Madison said, the national government had no
"jurisdiction" over religion or any "shadow of right to
B. LAW OF THE CASE intermeddle" with it. [23]

Mr. Justice Carpio's insistence, in his dissent, in attacking the The omission of an express guaranty of religious freedom and
ruling of this case interpreting the religious clauses of the other natural rights, however, nearly prevented the ratification
Constitution, made more than two years ago, is misplaced to of the Constitution. The restriction had to be made explicit
say the least. Since neither the complainant, respondent nor with the adoption of the religion clauses in the First
the government has filed a motion for reconsideration Amendment as they are worded to this day. Thus, the First
Amendment did not take away or abridge any power of the
national government; its intent was to make express the The Strict Separationist believes that the Establishment Clause
absence of power.[24] It commands, in two parts (with the first was meant to protect the state from the church, and the state's
part usually referred to as the Establishment Clause and the hostility towards religion allows no interaction between the
second part, the Free Exercise Clause), viz: two. According to this Jeffersonian view, an absolute barrier to
Congress shall make no law respecting an establishment of formal interdependence of religion and state needs to be
religion or prohibiting the free exercise thereof. [25] erected. Religious institutions could not receive aid, whether
The Establishment and Free Exercise Clauses, it should be direct or indirect, from the state. Nor could the state adjust its
noted, were not designed to serve contradictory purposes. secular programs to alleviate burdens the programs placed on
They have a single goal-to promote freedom of individual believers.[29] Only the complete separation of religion from
religious beliefs and practices. In simplest terms, the Free politics would eliminate the formal influence of religious
Exercise Clause prohibits government from inhibiting institutions and provide for a free choice among political
religious beliefs with penalties for religious beliefs and views, thus a strict "wall of separation" is necessary. [30]
practice, while the Establishment Clause prohibits government
from inhibiting religious belief with rewards for religious Strict separation faces difficulties, however, as it is deeply
beliefs and practices. In other words, the two religion clauses embedded in American history and contemporary practice that
were intended to deny government the power to use either the enormous amounts of aid, both direct and indirect, flow to
carrot or the stick to influence individual religious beliefs and religion from government in return for huge amounts of
practices.[26] mostly indirect aid from religion.[31] For example, less than
twenty-four hours after Congress adopted the First
In sum, a review of the Old World antecedents of religion Amendment's prohibition on laws respecting an establishment
shows the movement of establishment of religion as an engine of religion, Congress decided to express its thanks to God
to promote state interests, to the principle of non- Almighty for the many blessings enjoyed by the nation with a
establishment to allow the free exercise of religion. resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer.[32] Thus, strict
2. Religion Clauses in the U.S. Context separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never
The Court then turned to the religion clauses' interpretation likely to.[33]
and construction in the United States, not because we are
bound by their interpretation, but because the U.S. religion The tamer version of the strict separationist view, the strict
clauses are the precursors to the Philippine religion clauses, neutrality or separationist view, (or, the governmental
although we have significantly departed from the U.S. neutrality theory) finds basis in Everson v. Board of
interpretation as will be discussed later on. Education,[34] where the Court declared that Jefferson's "wall
of separation" encapsulated the meaning of the First
At the outset, it is worth noting that American jurisprudence in Amendment. However, unlike the strict separationists, the
this area has been volatile and fraught with inconsistencies strict neutrality view believes that the "wall of separation"
whether within a Court decision or across decisions. For while does not require the state to be their adversary. Rather, the
there is widespread agreement regarding the value of the First state must be neutral in its relations with groups of religious
Amendment religion clauses, there is an equally broad believers and non-believers. "State power is no more to be
disagreement as to what these clauses specifically require, used so as to handicap religions than it is to favor them."[35]
permit and forbid. No agreement has been reached by those The strict neutrality approach is not hostile to religion, but it is
who have studied the religion clauses as regards its exact strict in holding that religion may not be used as a basis for
meaning and the paucity of records in the U.S. Congress classification for purposes of governmental action, whether the
renders it difficult to ascertain its meaning.[27] action confers rights or privileges or imposes duties or
obligations. Only secular criteria may be the basis of
U.S. history has produced two identifiably different, even government action. It does not permit, much less require,
opposing, strains of jurisprudence on the religion clauses. First accommodation of secular programs to religious belief.[36]
is the standard of separation, which may take the form of
either (a) strict separation or (b) the tamer version of strict The problem with the strict neutrality approach, however, is if
neutrality or separation, or what Mr. Justice Carpio refers to as applied in interpreting the Establishment Clause, it could lead
the second theory of governmental neutrality. Although the to a de facto voiding of religious expression in the Free
latter form is not as hostile to religion as the former, both are Exercise Clause. As pointed out by Justice Goldberg in his
anchored on the Jeffersonian premise that a "wall of concurring opinion in Abington School District v. Schempp,
separation" must exist between the state and the Church to [37] strict neutrality could lead to "a brooding and pervasive
protect the state from the church.[28] Both protect the devotion to the secular and a passive, or even active, hostility
principle of church-state separation with a rigid reading of the to the religious" which is prohibited by the Constitution.[38]
principle. On the other hand, the second standard, the Professor Laurence Tribe commented in his authoritative
benevolent neutrality or accommodation, is buttressed by the treatise, viz:
view that the wall of separation is meant to protect the church To most observers. . . strict neutrality has seemed incompatible
from the state. A brief review of each theory is in order. with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly
a. Strict Separation and Strict Neutrality/Separation envisioned religion as something special; they enacted that
vision into law by guaranteeing the free exercise of religion Benevolent neutrality recognizes that religion plays an
but not, say, of philosophy or science. The strict neutrality important role in the public life of the United States as shown
approach all but erases this distinction. Thus it is not by many traditional government practices which, to strict
surprising that the [U.S.] Supreme Court has rejected strict neutrality, pose Establishment Clause questions. Among these
neutrality, permitting and sometimes mandating religious are the inscription of "In God We Trust" on American
classifications.[39] currency; the recognition of America as "one nation under
Thus, the dilemma of the separationist approach, whether in God" in the official pledge of allegiance to the flag; the
the form of strict separation or strict neutrality, is that while Supreme Court's time-honored practice of opening oral
the Jeffersonian wall of separation "captures the spirit of the argument with the invocation "God save the United States and
American ideal of church-state separation," in real life, church this Honorable Court"; and the practice of Congress and every
and state are not and cannot be totally separate. This is all the state legislature of paying a chaplain, usually of a particular
more true in contemporary times when both the government Protestant denomination, to lead representatives in prayer.
and religion are growing and expanding their spheres of These practices clearly show the preference for one
involvement and activity, resulting in the intersection of theological viewpoint-the existence of and potential for
government and religion at many points.[40] intervention by a god-over the contrary theological viewpoint
of atheism. Church and government agencies also cooperate
b. Benevolent Neutrality/Accommodation in the building of low-cost housing and in other forms of poor
relief, in the treatment of alcoholism and drug addiction, in
The theory of benevolent neutrality or accommodation is foreign aid and other government activities with strong moral
premised on a different view of the "wall of separation," dimension. [44]
associated with Williams, founder of the Rhode Island colony.
Unlike the Jeffersonian wall that is meant to protect the state Examples of accommodations in American jurisprudence also
from the church, the wall is meant to protect the church from abound, including, but not limited to the U.S. Court declaring
the state.[41] This doctrine was expressed in Zorach v. the following acts as constitutional: a state hiring a
Clauson,[42] which held, viz: Presbyterian minister to lead the legislature in daily prayers,
The First Amendment, however, does not say that in every and [45] or requiring employers to pay workers compensation
all respects there shall be a separation of Church and State. when the resulting inconsistency between work and Sabbath
Rather, it studiously defines the manner, the specific ways, in leads to discharge;[46] for government to give money to
which there shall be no concert or union or dependency one or religiously-affiliated organizations to teach adolescents about
the other. That is the common sense of the matter. Otherwise, proper sexual behavior;[47] or to provide religious school
the state and religion would be aliens to each other - hostile, pupils with books;[48] or bus rides to religious schools;[49]
suspicious, and even unfriendly. Churches could not be or with cash to pay for state-mandated standardized tests.[50]
required to pay even property taxes. Municipalities would not
be permitted to render police or fire protection to religious (1) Legislative Acts and the Free Exercise Clause
groups. Policemen who helped parishioners into their places
of worship would violate the Constitution. Prayers in our As with the other rights under the Constitution, the rights
legislative halls; the appeals to the Almighty in the messages embodied in the Religion clauses are invoked in relation to
of the Chief Executive; the proclamations making governmental action, almost invariably in the form of
Thanksgiving Day a holiday; "so help me God" in our legislative acts.
courtroom oaths-these and all other references to the Almighty
that run through our laws, our public rituals, our ceremonies Generally speaking, a legislative act that purposely aids or
would be flouting the First Amendment. A fastidious atheist inhibits religion will be challenged as unconstitutional, either
or agnostic could even object to the supplication with which because it violates the Free Exercise Clause or the
the Court opens each session: "God save the United States and Establishment Clause or both. This is true whether one
this Honorable Court." subscribes to the separationist approach or the benevolent
neutrality or accommodationist approach.
xxx xxx xxx
But the more difficult religion cases involve legislative acts
We are a religious people whose institutions presuppose a which have a secular purpose and general applicability, but
Supreme Being. We guarantee the freedom to worship as one may incidentally or inadvertently aid or burden religious
chooses. . . When the state encourages religious instruction or exercise. Though the government action is not religiously
cooperates with religious authorities by adjusting the schedule motivated, these laws have a "burdensome effect" on religious
of public events, it follows the best of our traditions. For it exercise.
then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To The benevolent neutrality theory believes that with respect to
hold that it may not would be to find in the Constitution a these governmental actions, accommodation of religion may
requirement that the government show a callous indifference be allowed, not to promote the government's favored form of
to religious groups. . . But we find no constitutional religion, but to allow individuals and groups to exercise their
requirement which makes it necessary for government to be religion without hindrance. The purpose of accommodations is
hostile to religion and to throw its weight against efforts to to remove a burden on, or facilitate the exercise of, a person's
widen their effective scope of religious influence. [43] or institution's religion. As Justice Brennan explained, the
"government [may] take religion into account...to exempt,
when possible, from generally applicable governmental alternative means of regulations would address such
regulation individuals whose religious beliefs and practices detrimental effects without infringing religious liberty. The
would otherwise thereby be infringed, or to create without state, however, did not discharge this burden. The Court thus
state involvement an atmosphere in which voluntary religious carved out for Sherbert an exemption from the Saturday work
exercise may flourish."[51] In the ideal world, the legislature requirement that caused her disqualification from claiming the
would recognize the religions and their practices and would unemployment benefits. The Court reasoned that upholding
consider them, when practical, in enacting laws of general the denial of Sherbert's benefits would force her to choose
application. But when the legislature fails to do so, religions between receiving benefits and following her religion. This
that are threatened and burdened may turn to the courts for choice placed "the same kind of burden upon the free exercise
protection.[52] of religion as would a fine imposed against (her) for her
Saturday worship." This germinal case of Sherbert firmly
Thus, what is sought under the theory of accommodation is established the exemption doctrine, [59] viz:
not a declaration of unconstitutionality of a facially neutral It is certain that not every conscience can be accommodated
law, but an exemption from its application or its "burdensome by all the laws of the land; but when general laws conflict with
effect," whether by the legislature or the courts.[53] Most of scruples of conscience, exemptions ought to be granted unless
the free exercise claims brought to the U.S. Court are for some "compelling state interest" intervenes.
exemption, not invalidation of the facially neutral law that has Thus, Sherbert and subsequent cases held that when
a "burdensome" effect.[54] government action burdens, even inadvertently, a sincerely
held religious belief or practice, the state must justify the
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith burden by demonstrating that the law embodies a compelling
interest, that no less restrictive alternative exists, and that a
The pinnacle of free exercise protection and the theory of religious exemption would impair the state's ability to
accommodation in the U.S. blossomed in the case of Sherbert effectuate its compelling interest. As in other instances of state
v. Verner,[55] which ruled that state regulation that indirectly action affecting fundamental rights, negative impacts on those
restrains or punishes religious belief or conduct must be rights demand the highest level of judicial scrutiny. After
subjected to strict scrutiny under the Free Exercise Clause.[56] Sherbert, this strict scrutiny balancing test resulted in court-
According to Sherbert, when a law of general application mandated religious exemptions from facially-neutral laws of
infringes religious exercise, albeit incidentally, the state general application whenever unjustified burdens were found.
interest sought to be promoted must be so paramount and [60]
compelling as to override the free exercise claim. Otherwise,
the Court itself will carve out the exemption. Then, in the 1972 case of Wisconsin v. Yoder,[61] the U.S.
Court again ruled that religious exemption was in order,
In this case, Sherbert, a Seventh Day Adventist, claimed notwithstanding that the law of general application had a
unemployment compensation under the law as her criminal penalty. Using heightened scrutiny, the Court
employment was terminated for refusal to work on Saturdays overturned the conviction of Amish parents for violating
on religious grounds. Her claim was denied. She sought Wisconsin compulsory school-attendance laws. The Court, in
recourse in the Supreme Court. In laying down the standard effect, granted exemption from a neutral, criminal statute that
for determining whether the denial of benefits could withstand punished religiously motivated conduct. Chief Justice Burger,
constitutional scrutiny, the Court ruled, viz: writing for the majority, held, viz:
Plainly enough, appellee's conscientious objection to Saturday It follows that in order for Wisconsin to compel school
work constitutes no conduct prompted by religious principles attendance beyond the eighth grade against a claim that such
of a kind within the reach of state legislation. If, therefore, the attendance interferes with the practice of a legitimate religious
decision of the South Carolina Supreme Court is to withstand belief, it must appear either that the State does not deny the
appellant's constitutional challenge, it must be either because free exercise of religious belief by its requirement, or that
her disqualification as a beneficiary represents no there is a state interest of sufficient magnitude to override the
infringement by the State of her constitutional right of free interest claiming protection under the Free Exercise Clause.
exercise, or because any incidental burden on the free exercise Long before there was general acknowledgement of the need
of appellant's religion may be justified by a "compelling state for universal education, the Religion Clauses had specially and
interest in the regulation of a subject within the State's firmly fixed the right of free exercise of religious beliefs, and
constitutional power to regulate. . . ."[57] (emphasis supplied) buttressing this fundamental right was an equally firm, even if
The Court stressed that in the area of religious liberty, it is less explicit, prohibition against the establishment of any
basic that it is not sufficient to merely show a rational religion. The values underlying these two provisions relating
relationship of the substantial infringement to the religious to religion have been zealously protected, sometimes even at
right and a colorable state interest. "(I)n this highly sensitive the expense of other interests of admittedly high social
constitutional area, '[o]nly the gravest abuses, endangering importance. . .
paramount interests, give occasion for permissible
limitation.'"[58] The Court found that there was no such The essence of all that has been said and written on the subject
compelling state interest to override Sherbert's religious is that only those interests of the highest order and those not
liberty. It added that even if the state could show that otherwise served can overbalance legitimate claims to the free
Sherbert's exemption would pose serious detrimental effects to exercise of religion. . .
the unemployment compensation fund and scheduling of
work, it was incumbent upon the state to show that no
. . . our decisions have rejected the idea that religiously
grounded conduct is always outside the protection of the Free Sherbert and Yoder adopted a balancing test for free exercise
Exercise Clause. It is true that activities of individuals, even jurisprudence which would impose a discipline to prevent
when religiously based, are often subject to regulation by the manipulation in the balancing of interests. The fourth and the
States in the exercise of their undoubted power to promote the fifth elements prevented the likelihood of exaggeration of the
health, safety, and general welfare, or the Federal government weight on the governmental interest side of the balance, by not
in the exercise of its delegated powers . . . But to agree that allowing speculation about the effects of a decision adverse to
religiously grounded conduct must often be subject to the those interests nor accepting that those interests would be
broad police power of the State is not to deny that there are defined at a higher level of generality than the constitutional
areas of conduct protected by the Free Exercise Clause of the interests on the other side of the balance. [66]
First Amendment and thus beyond the power of the State to
control, even under regulations of general applicability. . . Thus, the strict scrutiny and compelling state interest test
.This case, therefore, does not become easier because significantly increased the degree of protection afforded to
respondents were convicted for their "actions" in refusing to religiously motivated conduct. While not affording absolute
send their children to the public high school; in this context immunity to religious activity, a compelling secular
belief and action cannot be neatly confined in logic-tight justification was necessary to uphold public policies that
compartments. . . [62] collided with religious practices. Although the members of the
The cases of Sherbert and Yoder laid out the following U.S. Court often disagreed over which governmental interests
doctrines: (a) free exercise clause claims were subject to should be considered compelling, thereby producing
heightened scrutiny or compelling interest test if government dissenting and separate opinions in religious conduct cases,
substantially burdened the exercise of religion; (b) heightened this general test established a strong presumption in favor of
scrutiny or compelling interest test governed cases where the the free exercise of religion.[67] Most scholars and courts
burden was direct, i.e., the exercise of religion triggered a agreed that under Sherbert and Yoder, the Free Exercise
criminal or civil penalty, as well as cases where the burden Clause provided individuals some form of heightened scrutiny
was indirect, i.e., the exercise of religion resulted in the protection, if not always a compelling interest one.[68] The
forfeiture of a government benefit;[63] and (c) the Court could 1990 case of Employment Division, Oregon Department of
carve out accommodations or exemptions from a facially Human Resources v. Smith,[69] drastically changed all that.
neutral law of general application, whether general or
criminal. Smith involved a challenge by Native Americans to an Oregon
law prohibiting use of peyote, a hallucinogenic substance.
The Sherbert-Yoder doctrine had five main components. First, Specifically, individuals challenged the state's determination
action was protected-conduct beyond speech, press, or that their religious use of peyote, which resulted in their
worship was included in the shelter of freedom of religion. dismissal from employment, was misconduct disqualifying
Neither Sherbert's refusal to work on the Sabbath nor the them from receipt of unemployment compensation benefits.
Amish parents' refusal to let their children attend ninth and [70]
tenth grades can be classified as conduct protected by the other
clauses of the First Amendment. Second, indirect impositions Justice Scalia, writing for the majority, rejected the claim that
on religious conduct, such as the denial of twenty-six weeks of free exercise of religion required an exemption from an
unemployment insurance benefits to Adel Sherbert, as well as otherwise valid law. Scalia said that "[w]e have never held that
direct restraints, such as the criminal prohibition at issue in an individual's religious beliefs excuse him from compliance
Yoder, were prohibited. Third, as the language in the two with an otherwise valid law prohibiting conduct that the State
cases indicate, the protection granted was extensive. Only is free to regulate. On the contrary, the record of more than a
extremely strong governmental interests justified impingement century of our free exercise jurisprudence contradicts that
on religious conduct, as the absolute language of the test of the proposition." [71] Scalia thus declared "that the right of free
Free Exercise Clause suggests. [64] exercise does not relieve an individual of the obligation to
comply with a 'valid and neutral law of general applicability of
Fourth, the strong language was backed by a requirement that the ground that the law proscribes (or prescribes) conduct that
the government provide proof of the important interest at stake his religion prescribes (or proscribes).'" [72]
and of the dangers to that interest presented by the religious
conduct at issue. Fifth, in determining the injury to the Justice Scalia's opinion then reviewed the cases where free
government's interest, a court was required to focus on the exercise challenges had been upheld-such as Cantwell,
effect that exempting religious claimants from the regulation Murdock, Follet, Pierce, and Yoder-and said that none
would have, rather than on the value of the regulation in involved the free exercise clause claims alone. All involved
general. Thus, injury to governmental interest had to be "the Free Exercise Clause in conjunction with other
measured at the margin: assuming the law still applied to all constitutional protections, such as freedom of speech and of
others, what would be the effect of exempting the religious the press, or the right of parents to direct the education of their
claimant in this case and other similarly situated religious children." [73] The Court said that Smith was distinguishable
claimants in the future? Together, the fourth and fifth because it did not involve such a "hybrid situation," but was a
elements required that facts, rather than speculation, had to be free exercise claim "unconnected with any communicative
presented concerning how the government's interest would be activity or parental right." [74]Moreover, the Court said that
harmed by excepting religious conduct from the law being the Sherbert line of cases applied only in the context of the
challenged. [65] denial of unemployment benefits; it did not create a basis for
an exemption from criminal laws. Scalia wrote that "[e]ven if Conservatives bemoan the decision as an assault on religious
we were inclined to breathe into Sherbert some life beyond the belief leaving religion, more than ever, subject to the caprice
unemployment compensation field, we would not apply it to of an ever more secular nation that is increasingly hostile to
require exemptions from a generally applicable criminal law." religious belief as an oppressive and archaic anachronism. [85]
[75]
The Smith doctrine is highly unsatisfactory in several respects
The Court expressly rejected the use of strict scrutiny for and has been criticized as exhibiting a shallow understanding
challenges to neutral laws of general applicability that burden of free exercise jurisprudence.[86] First, the First amendment
religion. Justice Scalia said that "[p]recisely because 'we are a was intended to protect minority religions from the tyranny of
cosmopolitan nation made up of people of almost conceivable the religious and political majority. [87] Critics of Smith have
religious preference,' and precisely because we value and worried about religious minorities, who can suffer
protect that religious divergence, we cannot afford the luxury disproportionately from laws that enact majoritarian mores.
of deeming presumptively invalid, as applied to the religious [88] Smith, in effect would allow discriminating in favor of
objector, every regulation of conduct that does not protect an mainstream religious groups against smaller, more peripheral
interest of the highest order." The Court said that those seeking groups who lack legislative clout,[89] contrary to the original
religious exemptions from laws should look to the democratic theory of the First Amendment.[90] Undeniably, claims for
process for protection, not the courts. [76] judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually
Smith thus changed the test for the free exercise clause. Strict wiped out their judicial recourse for exemption.[91] Second,
or heightened scrutiny and the compelling justification Smith leaves too much leeway for pervasive welfare-state
approach were abandoned for evaluating laws burdening regulation to burden religion while satisfying neutrality. After
religion; neutral laws of general applicability only have to all, laws not aimed at religion can hinder observance just as
meet the rational basis test, no matter how much they burden effectively as those that target religion.[92] Government
religion. [77] impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture
Justice O'Connor wrote a concurring opinion sharply where direct and deliberate regulatory imposition of religious
criticizing the rejection of the compelling state interest test, orthodoxy is nearly inconceivable. If the Free Exercise Clause
asserting that "(t)he compelling state interest test effectuates could not afford protection to inadvertent interference, it
the First Amendment's command that religious liberty is an would be left almost meaningless.[93] Third, the Reynolds-
independent liberty, that it occupies a preferred position, and Gobitis-Smith[94] doctrine simply defies common sense. The
that the Court will not permit encroachments upon this liberty, state should not be allowed to interfere with the most deeply
whether direct or indirect, unless required by clear and held fundamental religious convictions of an individual in
compelling government interest 'of the highest order.'"[78] She order to pursue some trivial state economic or bureaucratic
said that strict scrutiny is appropriate for free exercise objective. This is especially true when there are alternative
challenges because "[t]he compelling interest test reflects the approaches for the state to effectively pursue its objective
First Amendment's mandate of preserving religious liberty to without serious inadvertent impact on religion.[95]
the fullest extent possible in a pluralistic society." [79]
At bottom, the Court's ultimate concern in Smith appeared to
Justice O'Connor also disagreed with the majority's description be two-fold: (1) the difficulty in defining and limiting the term
of prior cases and especially its leaving the protection of "religion" in today's pluralistic society, and (2) the belief that
minority religions to the political process. She said that, "First courts have no business determining the significance of an
Amendment was enacted precisely to protect the rights of individual's religious beliefs. For the Smith Court, these two
those whose religious practice are not shared by the majority concerns appear to lead to the conclusion that the Free
and may be viewed with hostility." [80] Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only
Justice Blackmun wrote a dissenting opinion that was joined viable options are to leave free exercise protection to the
by Justices Brennan and Marshall. The dissenting Justices political process or to allow a "system in which each
agreed with Justice O'Connor that the majority had conscience is a law unto itself." [96] The Court's
mischaracterized precedents, such as in describing Yoder as a characterization of its choices have been soundly rejected as
"hybrid" case rather than as one under the free exercise clause. false, viz:
The dissent also argued that strict scrutiny should be used in If one accepts the Court's assumption that these are the only
evaluating government laws burdening religion. [81] two viable options, then admittedly, the Court has a stronger
argument. But the Free Exercise Clause cannot be summarily
Criticism of Smith was intense and widespread.[82] dismissed as too difficult to apply and this should not be
Academics, Justices, and a bipartisan majority of Congress applied at all. The Constitution does not give the judiciary the
noisily denounced the decision.[83] Smith has the rather option of simply refusing to interpret its provisions. The First
unusual distinction of being one case that is almost universally Amendment dictates that free exercise of "religion" must be
despised (and this is not too strong a word) by both the liberals protected. Accordingly, the Constitution compels the Court to
and conservatives.[84] Liberals chasten the Court for its struggle with the contours of what constitutes "religion."
hostility to minority faiths which, in light of Smith's general There is no constitutional opt-out provision for constitutional
applicability rule, will allegedly suffer at the hands of the words that are difficult to apply.
majority faith whether through outright hostility or neglect.
Nor does the Constitution give the Court the option of simply constitutional protection when forced to choose between
ignoring constitutional mandates. A large area of middle religious conscience and going to jail than when forced to
ground exists between the Court's two opposing alternatives choose between religious conscience and financial loss. [100]
for free exercise jurisprudence. Unfortunately, this middle
ground requires the Court to tackle difficult issues such as Thus, the Smith decision elicited much negative public
defining religion and possibly evaluating the significance of a reaction especially from the religious community, and
religious belief against the importance of a specific law. The commentaries insisted that the Court was allowing the Free
Court describes the results of this middle ground where Exercise Clause to disappear.[101] So much was the uproar
"federal judges will regularly balance against the importance that a majority in Congress was convinced to enact the
of general laws the significance of religious practice," and Religious Freedom Restoration Act (RFRA) of 1993.[102]
then dismisses it as a "parade of horribles" that is too "horrible The RFRA was adopted to negate the Smith test and require
to contemplate." strict scrutiny for free exercise claims. Indeed, the findings
section of the Act notes that Smith "virtually eliminated the
It is not clear whom the Court feels would be most hurt by this requirement that the government justify burdens on religious
"parade of horribles." Surely not religious individuals; they exercise imposed by laws neutral toward religion."[103] The
would undoubtedly prefer their religious beliefs to be probed Act declares that its purpose is to restore the compelling
for sincerity and significance rather than acquiesce to the interest test as set forth in Sherbert v. Verner and Wisconsin v.
Court's approach of simply refusing to grant any constitutional Yoder, and to guarantee its application in all cases where free
significance to their beliefs at all. If the Court is concerned exercise of religion is substantially burdened; and to provide a
about requiring lawmakers at times constitutionally to exempt claim of defense to a person whose religious exercise is
religious individuals from statutory provisions, its concern is substantially burdened by government.[104] The RFRA thus
misplaced. It is the lawmakers who have sought to prevent the sought to overrule Smith and make strict scrutiny the test for
Court from dismantling the Free Exercise Clause through such all free exercise clause claims. [105]
legislation as the [Religious Freedom Restoration Act of
1993], and in any case, the Court should not be overly In the City of Boerne v. Flores, [106] the U.S. Supreme Court
concerned about hurting legislature's feelings by requiring declared the RFRA unconstitutional, ruling that Congress had
their laws to conform to constitutional dictates. Perhaps the exceeded its power under the Fourteenth Amendment in
Court is concerned about putting such burden on judges. If so, enacting the law. The Court ruled that Congress is empowered
it would truly be odd to say that requiring the judiciary to to enact laws "to enforce the amendment," but Congress is not
perform its appointed role as constitutional interpreters is a "enforcing" when it creates new constitutional rights or
burden no judge should be expected to fulfill.[97] expands the scope of rights. [107]
Parenthetically, Smith's characterization that the U.S. Court
has "never held that an individual's religious beliefs excuse City of Boerne also drew public backlash as the U.S. Supreme
him from compliance with an otherwise valid law prohibiting Court was accused of lack of judicial respect for the
conduct that the state is free to regulate"-an assertion which constitutional decision-making by a coordinate branch of
Mr. Justice Carpio adopted unequivocally in his dissent-has government. In Smith, Justice Scalia wrote:
been sharply criticized even implicitly by its supporters, as "Values that are protected against governmental interference
blatantly untrue. Scholars who supported Smith frequently did through enshrinement in the Bill of Rights are not thereby
not do so by opposing the arguments that the Court was wrong banished from the political process. Just as society believes in
as a matter of original meaning [of the religion clauses] or that the negative protection accorded to the press by the First
the decision conflicted with precedent [i.e. the Smith decision Amendment is likely to enact laws that affirmatively foster the
made shocking use of precedent]�those points were often dissemination of the printed word, so also a society that
conceded. [98] believes in the negative protection accorded to religious belief
can be expected to be solicitous of that value in its legislation
To justify its perversion of precedent, the Smith Court as well."
attempted to distinguish the exemption made in Yoder, by By invalidating RFRA, the Court showed a marked disrespect
asserting that these were premised on two constitutional rights of the solicitude of a nearly unanimous Congress. Contrary to
combined-the right of parents to direct the education of their the Court's characterization of the RFRA as a kind of
children and the right of free exercise of religion. Under the usurpation of the judicial power to say what the Constitution
Court's opinion in Smith, the right of free exercise of religion means, the law offered no definition of Free Exercise, and on
standing alone would not allow Amish parents to disregard the its face appeared to be a procedural measure establishing a
compulsory school attendance law, and under the Court's standard of proof and allocating the duty of meeting it. In
opinion in Yoder, parents whose objection to the law was not effect, the Court ruled that Congress had no power in the area
religious would also have to obey it. The fatal flaw in this of religion. And yet, Free Exercise exists in the First
argument, however, is that if two constitutional claims will fail Amendment as a negative on Congress. The power of
on its own, how would it prevail if combined?[99] As for Congress to act towards the states in matters of religion arises
Sherbert, the Smith Court attempted to limit its doctrine as from the Fourteenth Amendment. [108]
applicable only to denials of unemployment compensation
benefits where the religiously-compelled conduct that leads to From the foregoing, it can be seen that Smith, while expressly
job loss is not a violation of criminal law. And yet, this is recognizing the power of legislature to give accommodations,
precisely why the rejection of Sherbert was so damaging in its is in effect contrary to the benevolent neutrality or
effect: the religious person was more likely to be entitled to accommodation approach. Moreover, if we consider the
history of the incorporation of the religion clauses in the U.S., the Amish who objected to enrolling their children in high
the decision in Smith is grossly inconsistent with the school as required by law. The Sherbert case is another
importance placed by the framers on religious faith. Smith is example where the Court held that the state unemployment
dangerous precedent because it subordinates fundamental compensation plan must accommodate the religious
rights of religious belief and practice to all neutral, general convictions of Sherbert.[112]
legislation. Sherbert recognized the need to protect religious
exercise in light of the massive increase in the size of In permissive accommodation, the Court finds that the State
government, the concerns within its reach, and the number of may, but is not required to, accommodate religious interests.
laws administered by it. However, Smith abandons the The U.S. Walz case illustrates this situation where the U.S.
protection of religious exercise at a time when the scope and Supreme Court upheld the constitutionality of tax exemption
reach of government has never been greater. It has been given by New York to church properties, but did not rule that
pointed out that Smith creates the legal framework for the state was required to provide tax exemptions. The Court
persecution: through general, neutral laws, legislatures are declared that "(t)he limits of permissible state accommodation
now able to force conformity on religious minorities whose to religion are by no means co-extensive with the
practice irritate or frighten an intolerant majority.[109] noninterference mandated by the Free Exercise Clause."[113]
Other examples are Zorach v. Clauson,[114] allowing released
The effect of Smith is to erase entirely the concept of time in public schools and Marsh v. Chambers,[115] allowing
mandatory accommodations, thereby emasculating the Free payment of legislative chaplains from public funds.
Exercise Clause. Smith left religious freedom for many in the Parenthetically, the Court in Smith has ruled that this is the
hands of the political process, exactly where it would be if the only accommodation allowed by the Religion Clauses.
religion clauses did not exist in the Bill of Rights. Like most
protections found in the Bill of Rights, the religion clauses of Finally, when the Court finds no basis for a mandatory
the First Amendment are most important to those who cannot accommodation, or it determines that the legislative
prevail in the political process. The Court in Smith ignores the accommodation runs afoul of the establishment or the free
fact that the protections found in the Bill of Rights were exercise clause, it results to a prohibited accommodation. In
deemed too important to leave to the political process. this case, the Court finds that establishment concerns prevail
Because mainstream religions generally have been successful over potential accommodation interests. To say that there are
in protecting their interests through the political process, it is valid exemptions buttressed by the Free Exercise Clause does
the non-mainstream religions that are adversely affected by not mean that all claims for free exercise exemptions are valid.
Smith. In short, the U.S. Supreme Court has made it clear to [116] An example where accommodation was prohibited is
such religions that they should not look to the First McCollum v. Board of Education,[117] where the Court ruled
Amendment for religious freedom. [110] against optional religious instruction in the public school
premises.[118]
(3) Accommodation under the Religion Clauses
Given that a free exercise claim could lead to three different
A free exercise claim could result to three kinds of results, the question now remains as to how the Court should
accommodation: (a) those which are found to be determine which action to take. In this regard, it is the strict
constitutionally compelled, i.e., required by the Free Exercise scrutiny-compelling state interest test which is most in line
Clause; (b) those which are discretionary or legislative, i.e., with the benevolent neutrality-accommodation approach.
not required by the Free Exercise Clause but nonetheless
permitted by the Establishment Clause; and (c) those which Under the benevolent-neutrality theory, the principle
the religion clauses prohibit.[111] underlying the First Amendment is that freedom to carry out
one's duties to a Supreme Being is an inalienable right, not one
Mandatory accommodation results when the Court finds that dependent on the grace of legislature. Religious freedom is
accommodation is required by the Free Exercise Clause, i.e, seen as a substantive right and not merely a privilege against
when the Court itself carves out an exemption. This discriminatory legislation. With religion looked upon with
accommodation occurs when all three conditions of the benevolence and not hostility, benevolent neutrality allows
compelling interest test are met, i.e, a statute or government accommodation of religion under certain circumstances.
action has burdened claimant's free exercise of religion, and
there is no doubt as to the sincerity of the religious belief; the Considering that laws nowadays are rarely enacted specifically
state has failed to demonstrate a particularly important or to disable religious belief or practice, free exercise disputes
compelling governmental goal in preventing an exemption; arise commonly when a law that is religiously neutral and
and that the state has failed to demonstrate that it used the least generally applicable on its face is argued to prevent or burden
restrictive means. In these cases, the Court finds that the what someone's religious faith requires, or alternatively,
injury to religious conscience is so great and the advancement requires someone to undertake an act that faith would
of public purposes is incomparable that only indifference or preclude. In essence, then, free exercise arguments
hostility could explain a refusal to make exemptions. Thus, if contemplate religious exemptions from otherwise general
the state's objective could be served as well or almost as well laws.[119]
by granting an exemption to those whose religious beliefs are
burdened by the regulation, the Court must grant the Strict scrutiny is appropriate for free exercise challenges
exemption. The Yoder case is an example where the Court because "[t]he compelling interest test reflects the First
held that the state must accommodate the religious beliefs of Amendment's mandate of preserving religious liberty to the
fullest extent possible in a pluralistic society.[120] Underlying decided subsequent to the 1935 Constitution is a misreading of
the compelling state interest test is the notion that free exercise the ponencia. What the ponencia pointed out was that even as
is a fundamental right and that laws burdening it should be early as 1935, or more than three decades before the U.S.
subject to strict scrutiny.[121] Court could validate the exemption in Walz as a form or
permissible accommodation, we have already incorporated the
In its application, the compelling state interest test follows a same in our Constitution, as a mandatory accommodation.
three-step process, summarized as follows:
If the plaintiff can show that a law or government practice There is no ambiguity with regard to the Philippine
inhibits the free exercise of his religious beliefs, the burden Constitution's departure from the U.S. Constitution, insofar as
shifts to the government to demonstrate that the law or religious accommodations are concerned. It is indubitable that
practice is necessary to the accomplishment of some important benevolent neutrality-accommodation, whether mandatory or
(or "compelling") secular objective and that it is the least permissive, is the spirit, intent and framework underlying the
restrictive means of achieving that objective. If the plaintiff Philippine Constitution.[128] As stated in our Decision, dated
meets this burden and the government does not, the plaintiff is August 4, 2003:
entitled to exemption from the law or practice at issue. In The history of the religion clauses in the 1987 Constitution
order to be protected, the claimant's beliefs must be 'sincere', shows that these clauses were largely adopted from the First
but they need not necessarily be consistent, coherent, clearly Amendment of the U.S. Constitution xxxx Philippine
articulated, or congruent with those of the claimant's religious jurisprudence and commentaries on the religious clauses also
denomination. 'Only beliefs rooted in religion are protected by continued to borrow authorities from U.S. jurisprudence
the Free Exercise Clause'; secular beliefs, however sincere and without articulating the stark distinction between the two
conscientious, do not suffice.[122] streams of U.S. jurisprudence [i.e., separation and benevolent
In sum, the U.S. Court has invariably decided claims based on neutrality]. One might simply conclude that the Philippine
the religion clauses using either the separationist approach, or Constitutions and jurisprudence also inherited the disarray of
the benevolent neutrality approach. The benevolent neutrality U.S. religion clause jurisprudence and the two identifiable
approach has also further been split by the view that the First streams; thus, when a religion clause case comes before the
Amendment requires accommodation, or that it only allows Court, a separationist approach or a benevolent neutrality
permissible legislative accommodations. The current approach might be adopted and each will have U.S. authorities
prevailing view as pronounced in Smith, however, is that that to support it. Or, one might conclude that as the history of the
there are no required accommodation under the First First Amendment as narrated by the Court in Everson supports
Amendment, although it permits of legislative the separationist approach, Philippine jurisprudence should
accommodations. also follow this approach in light of the Philippine religion
clauses' history. As a result, in a case where the party claims
3. Religion Clauses in the Philippine Context: Constitution, religious liberty in the face of a general law that inadvertently
Jurisprudence and Practice burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of
a. US Constitution and jurisprudence vis-à-vis Philippine separation would not be breached if the Court grants him an
Constitution exemption. These conclusions, however, are not and were
never warranted by the 1987, 1973 and 1935 Constitutions as
By juxtaposing the American Constitution and jurisprudence shown by other provisions on religion in all three
against that of the Philippines, it is immediately clear that one constitutions. It is a cardinal rule in constitutional
cannot simply conclude that we have adopted-lock, stock and construction that the constitution must be interpreted as a
barrel-the religion clauses as embodied in the First whole and apparently conflicting provisions should be
Amendment, and therefore, the U.S. Court's interpretation of reconciled and harmonized in a manner that will give to all of
the same. Unlike in the U.S. where legislative exemptions of them full force and effect. From this construction, it will be
religion had to be upheld by the U.S. Supreme Court as ascertained that the intent of the framers was to adopt a
constituting permissive accommodations, similar exemptions benevolent neutrality approach in interpreting the religious
for religion are mandatory accommodations under our own clauses in the Philippine constitutions, and the enforcement of
constitutions. Thus, our 1935, 1973 and 1987 Constitutions this intent is the goal of construing the constitution.[129]
contain provisions on tax exemption of church property,[123] [citations omitted]
salary of religious officers in government institutions,[124] We therefore reject Mr. Justice Carpio's total adherence to the
and optional religious instruction.[125] Our own preamble U.S. Court's interpretation of the religion clauses to effectively
also invokes the aid of a divine being.[126] These deny accommodations on the sole basis that the law in
constitutional provisions are wholly ours and have no question is neutral and of general application. For even if it
counterpart in the U.S. Constitution or its amendments. They were true that "an unbroken line of U.S. Supreme Court
all reveal without doubt that the Filipino people, in adopting decisions" has never held that "an individual's religious beliefs
these constitutions, manifested their adherence to the [do not] excuse him from compliance with an otherwise valid
benevolent neutrality approach that requires accommodations law prohibiting conduct that the State is free to regulate," our
in interpreting the religion clauses.[127] own Constitutions have made significant changes to
accommodate and exempt religion. Philippine jurisprudence
The argument of Mr. Justice Carpio that the August 4, 2003 shows that the Court has allowed exemptions from a law of
ponencia was erroneous insofar as it asserted that the 1935 general application, in effect, interpreting our religion clauses
Constitution incorporates the Walz ruling as this case was
to cover both mandatory and permissive accommodations. unanimous Court upheld the constitutionality of the law,
[130] holding that "government is not precluded from pursuing valid
objectives secular in character even if the incidental result
To illustrate, in American Bible Society v. City of Manila, would be favorable to a religion or sect." Interestingly, the
[131] the Court granted to plaintiff exemption from a law of secular purpose of the challenged law which the Court upheld
general application based on the Free Exercise Clause. In this was the advancement of "the constitutional right to the free
case, plaintiff was required by an ordinance to secure a exercise of religion."[136]
mayor's permit and a municipal license as ordinarily required
of those engaged in the business of general merchandise under Having established that benevolent neutrality-accommodation
the city's ordinances. Plaintiff argued that this amounted to is the framework by which free exercise cases must be
"religious censorship and restrained the free exercise and decided, the next question then turned to the test that should be
enjoyment of religious profession, to wit: the distribution and used in ascertaining the limits of the exercise of religious
sale of bibles and other religious literature to the people of the freedom. In our Decision dated August 4, 2003, we reviewed
Philippines." Although the Court categorically held that the our jurisprudence, and ruled that in cases involving purely
questioned ordinances were not applicable to plaintiff as it was conduct based on religious belief, as in the case at bar, the
not engaged in the business or occupation of selling said compelling state interest test, is proper, viz:
"merchandise" for profit, it also ruled that applying the Philippine jurisprudence articulates several tests to determine
ordinance to plaintiff and requiring it to secure a license and these limits. Beginning with the first case on the Free
pay a license fee or tax would impair its free exercise of Exercise Clause, American Bible Society, the Court mentioned
religious profession and worship and its right of dissemination the "clear and present danger" test but did not employ it.
of religious beliefs "as the power to tax the exercise of a Nevertheless, this test continued to be cited in subsequent
privilege is the power to control or suppress its enjoyment." cases on religious liberty. The Gerona case then pronounced
The decision states in part, viz: that the test of permissibility of religious freedom is whether it
The constitutional guaranty of the free exercise and enjoyment violates the established institutions of society and law. The
of religious profession and worship carries with it the right to Victoriano case mentioned the "immediate and grave danger"
disseminate religious information. Any restraint of such right test as well as the doctrine that a law of general applicability
can only be justified like other restraints of freedom of may burden religious exercise provided the law is the least
expression on the grounds that there is a clear and present restrictive means to accomplish the goal of the law. The case
danger of any substantive evil which the State has the right to also used, albeit inappropriately, the "compelling state
prevent. (citations omitted, emphasis supplied) interest" test. After Victoriano, German went back to the
Another case involving mandatory accommodation is Gerona rule. Ebralinag then employed the "grave and
Ebralinag v. The Division Superintendent of Schools.[132] immediate danger" test and overruled the Gerona test. The
The case involved several Jehovah's Witnesses who were fairly recent case of Iglesia ni Cristo went back to the "clear
expelled from school for refusing to salute the flag, sing the and present danger" test in the maiden case of American Bible
national anthem and recite the patriotic pledge, in violation of Society. Not surprisingly, all the cases which employed the
the Administrative Code of 1987. In resolving the religious "clear and present danger" or "grave and immediate danger"
freedom issue, a unanimous Court overturned an earlier ruling test involved, in one form or another, religious speech as this
denying such exemption,[133] using the "grave and imminent test is often used in cases on freedom of expression. On the
danger" test, viz: other hand, the Gerona and German cases set the rule that
The sole justification for a prior restraint or limitation on the religious freedom will not prevail over established institutions
exercise of religious freedom (according to the late Chief of society and law. Gerona, however, which was the authority
Justice Claudio Teehankee in his dissenting opinion in German cited by German has been overruled by Ebralinag which
v. Barangan, 135 SCRA 514, 517) is the existence of a grave employed the "grave and immediate danger" test. Victoriano
and present danger of a character both grave and imminent, of was the only case that employed the "compelling state
a serious evil to public safety, public morals, public health or interest" test, but as explained previously, the use of the test
any other legitimate public interest, that the State has a right was inappropriate to the facts of the case.
(and duty) to prevent. Absent such a threat to public safety,
the expulsion of the petitioners from the schools is not The case at bar does not involve speech as in American Bible
justified.[134] (emphases supplied) Society, Ebralinag and Iglesia ni Cristo where the "clear and
In these two cases, the Court itself carved out an exemption present danger" and "grave and immediate danger" tests were
from a law of general application, on the strength directly of appropriate as speech has easily discernible or immediate
the Free Exercise Clause. effects. The Gerona and German doctrine, aside from having
been overruled, is not congruent with the benevolent neutrality
We also have jurisprudence that supports permissive approach, thus not appropriate in this jurisdiction. Similar to
accommodation. The case of Victoriano v. Elizalde Rope Victoriano, the present case involves purely conduct arising
Workers Union[135] is an example of the application of Mr. from religious belief. The "compelling state interest" test is
Justice Carpio's theory of permissive accommodation, where proper where conduct is involved for the whole gamut of
religious exemption is granted by a legislative act. In human conduct has different effects on the state's interests:
Victoriano, the constitutionality of Republic Act No. 3350 was some effects may be immediate and short-term while others
questioned. The said R.A. exempt employees from the delayed and far-reaching. A test that would protect the
application and coverage of a closed shop agreement- interests of the state in preventing a substantive evil, whether
mandated in another law-based on religious objections. A immediate or delayed, is therefore necessary. However, not
any interest of the state would suffice to prevail over the right assuming that the Smith doctrine actually espouses the theory
to religious freedom as this is a fundamental right that enjoys a of accommodation or benevolent neutrality, the
preferred position in the hierarchy of rights - "the most accommodation is limited to the permissive, or legislative
inalienable and sacred of all human rights", in the words of exemptions. It, therefore, cannot be used as a test in
Jefferson. This right is sacred for an invocation of the Free determining the claims of religious exemptions directly under
Exercise Clause is an appeal to a higher sovereignty. The the Free Exercise Clause because Smith does not recognize
entire constitutional order of limited government is premised such exemption. Moreover, Mr. Justice Carpio's advocacy of
upon an acknowledgment of such higher sovereignty, thus the the Smith doctrine would effectively render the Free Exercise
Filipinos implore the "aid of Almighty God in order to build a protection-a fundamental right under our Constitution-
just and humane society and establish a government." As held nugatory because he would deny its status as an independent
in Sherbert, only the gravest abuses, endangering paramount source of right.
interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state b. The Compelling State Interest Test
interest is therefore not appropriate. Instead, only a
compelling interest of the state can prevail over the As previously stated, the compelling state interest test involves
fundamental right to religious liberty. The test requires the a three-step process. We explained this process in detail, by
state to carry a heavy burden, a compelling one, for to do showing the questions which must be answered in each step,
otherwise would allow the state to batter religion, especially viz:
the less powerful ones until they are destroyed. In ...First, "[H]as the statute or government action created a
determining which shall prevail between the state's interest burden on the free exercise of religion?" The courts often look
and religious liberty, reasonableness shall be the guide. The into the sincerity of the religious belief, but without inquiring
"compelling state interest" serves the purpose of revering into the truth of the belief because the Free Exercise Clause
religious liberty while at the same time affording protection to prohibits inquiring about its truth as held in Ballard and
the paramount interests of the state. This was the test used in Cantwell. The sincerity of the claimant's belief is ascertained
Sherbert which involved conduct, i.e. refusal to work on to avoid the mere claim of religious beliefs to escape a
Saturdays. In the end, the "compelling state interest" test, by mandatory regulation. xxx
upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be xxx xxx xxx
preserved. [137] (citations omitted)
At this point, we take note of Mr. Justice Carpio's dissent, Second, the court asks: "[I]s there a sufficiently compelling
which, while loosely disputing the applicability of the state interest to justify this infringement of religious liberty?"
benevolent neutrality framework and compelling state interest In this step, the government has to establish that its purposes
test, states that "[i]t is true that a test needs to be applied by the are legitimate for the state and that they are compelling.
Court in determining the validity of a free exercise claim of Government must do more than assert the objectives at risk if
exemption as made here by Escritor." This assertion is exemption is given; it must precisely show how and to what
inconsistent with the position negating the benevolent extent those objectives will be undermined if exemptions are
neutrality or accommodation approach. If it were true, indeed, granted. xxx
that the religion clauses do not require accommodations based
on the free exercise of religion, then there would be no need xxx xxx xxx
for a test to determine the validity of a free exercise claim, as
any and all claims for religious exemptions from a law of Third, the court asks: "[H]as the state in achieving its
general application would fail. legitimate purposes used the least intrusive means possible so
that the free exercise is not infringed any more than necessary
Mr. Justice Carpio also asserts that "[m]aking a distinction to achieve the legitimate goal of the state?" The analysis
between permissive accommodation and mandatory requires the state to show that the means in which it is
accommodation is more critically important in analyzing free achieving its legitimate state objective is the least intrusive
exercise exemption claims because it forces the Court to means, i.e., it has chosen a way to achieve its legitimate state
confront how far it can validly set the limits of religious end that imposes as little as possible on religious liberties xxx.
liberty under the Free Exercise Clause, rather than presenting [138] [citations omitted]
the separation theory and accommodation theory as opposite Again, the application of the compelling state interest test
concepts, and then rejecting relevant and instructive American could result to three situations of accommodation: First,
jurisprudence (such as the Smith case) just because it does not mandatory accommodation would result if the Court finds that
espouse the theory selected." He then asserts that the Smith accommodation is required by the Free Exercise Clause.
doctrine cannot be dismissed because it does not really Second, if the Court finds that the State may, but is not
espouse the strict neutrality approach, but more of permissive required to, accommodate religious interests, permissive
accommodation. accommodation results. Finally, if the Court finds that that
establishment concerns prevail over potential accommodation
Mr. Justice Carpio's assertion misses the point. Precisely interests, then it must rule that the accommodation is
because the doctrine in Smith is that only legislative prohibited.
accommodations are allowed under the Free Exercise Clause,
it cannot be used in determining a claim of religion exemption One of the central arguments in Mr. Justice Carpio's dissent is
directly anchored on the Free Exercise Clause. Thus, even that only permissive accommodation can carve out an
exemption from a law of general application. He posits the
view that the law should prevail in the absence of a legislative What Mr. Justice Carpio is left with is the argument, based on
exemption, and the Court cannot make the accommodation or Smith, that the test in Sherbert is not applicable when the law
exemption. in question is a generally applicable criminal law. Stated
differently, even if Mr. Justice Carpio conceded that there is no
Mr. Justice Carpio's position is clearly not supported by question that in the Philippine context, accommodations are
Philippine jurisprudence. The cases of American Bible made, the question remains as to how far the exemptions will
Society, Ebralinag, and Victoriano demonstrate that our be made and who would make these exemptions.
application of the doctrine of benevolent neutrality-
accommodation covers not only the grant of permissive, or On this point, two things must be clarified: first, in relation to
legislative accommodations, but also mandatory criminal statutes, only the question of mandatory
accommodations. Thus, an exemption from a law of general accommodation is uncertain, for Philippine law and
application is possible, even if anchored directly on an jurisprudence have, in fact, allowed legislative
invocation of the Free Exercise Clause alone, rather than a accommodation. Second, the power of the Courts to grant
legislative exemption. exemptions in general (i.e., finding that the Free Exercise
Clause required the accommodation, or mandatory
Moreover, it should be noted that while there is no Philippine accommodations) has already been decided, not just once, but
case as yet wherein the Court granted an twice by the Court. Thus, the crux of the matter is whether this
accommodation/exemption to a religious act from the Court can make exemptions as in Ebralinag and the American
application of general penal laws, permissive accommodation Bible Society, in cases involving criminal laws of general
based on religious freedom has been granted with respect to application.
one of the crimes penalized under the Revised Penal Code,
that of bigamy. We hold that the Constitution itself mandates the Court to do
so for the following reasons.
In the U.S. case of Reynolds v. United States,[139] the U.S.
Court expressly denied to Mormons an exemption from a First, as previously discussed, while the U.S. religion clauses
general federal law criminalizing polygamy, even if it was are the precursors to the Philippine religion clauses, the
proven that the practice constituted a religious duty under their benevolent neutrality-accommodation approach in Philippine
faith.[140] In contradistinction, Philippine law accommodates jurisdiction is more pronounced and given leeway than in the
the same practice among Moslems, through a legislative act. U.S.
For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. Second, the whole purpose of the accommodation theory,
1083, otherwise known as the Code of Muslim Personal Laws including the notion of mandatory accommodations, was to
of the Philippines, provides that the penal laws relative to the address the "inadvertent burdensome effect" that an otherwise
crime of bigamy "shall not apply to a person married...under facially neutral law would have on religious exercise. Just
Muslim law." Thus, by legislative action, accommodation is because the law is criminal in nature, therefore, should not
granted of a Muslim practice which would otherwise violate a bring it out of the ambit of the Free Exercise Clause. As stated
valid and general criminal law. Mr. Justice Carpio recognized by Justice O'Connor in her concurring opinion in Smith,
this accommodation when, in his dissent in our Decision dated "[t]here is nothing talismanic about neutral laws of general
August 4, 2003 and citing Sulu Islamic Association of Masjid applicability or general criminal prohibitions, for laws neutral
Lambayong v. Malik,[141] he stated that a Muslim Judge "is towards religion can coerce a person to violate his religious
not criminally liable for bigamy because Shari'a law allows a conscience or intrude upon his religious duties just as
Muslim to have more than one wife." effectively as laws aimed at religion."[142]

From the foregoing, the weakness of Mr. Justice Carpio's Third, there is wisdom in accommodation made by the Court
"permissive-accommodation only" advocacy in this as this is the recourse of minority religions who are likewise
jurisdiction becomes manifest. Having anchored his argument protected by the Free Exercise Clause. Mandatory
on the Smith doctrine that "the guaranty of religious liberty as accommodations are particularly necessary to protect
embodied in the Free Exercise Clause does not require the adherents of minority religions from the inevitable effects of
grant of exemptions from generally applicable laws to majoritarianism, which include ignorance and indifference and
individuals whose religious practice conflict with those laws," overt hostility to the minority. As stated in our Decision, dated
his theory is infirmed by the showing that the benevolent August 4, 2003:
neutrality approach which allows for both mandatory and ....In a democratic republic, laws are inevitably based on the
permissive accommodations was unequivocally adopted by presuppositions of the majority, thus not infrequently, they
our framers in the Philippine Constitution, our legislature, and come into conflict with the religious scruples of those holding
our jurisprudence. different world views, even in the absence of a deliberate
intent to interfere with religious practice. At times, this effect
Parenthetically, it should be pointed out that a "permissive is unavoidable as a practical matter because some laws are so
accommodation-only" stance is the antithesis to the notion that necessary to the common good that exceptions are intolerable.
religion clauses, like the other fundamental liberties found in But in other instances, the injury to religious conscience is so
the Bill or Rights, is a preferred right and an independent great and the advancement of public purposes so small or
source of right. incomparable that only indifference or hostility could explain
a refusal to make exemptions. Because of plural traditions, Court should take off in interpreting religion clause cases.
legislators and executive officials are frequently willing to The ideal towards which this approach is directed is the
make such exemptions when the need is brought to their protection of religious liberty "not only for a minority,
attention, but this may not always be the case when the however small- not only for a majority, however large but for
religious practice is either unknown at the time of enactment each of us" to the greatest extent possible within flexible
or is for some reason unpopular. In these cases, a constitutional limits.[145]
constitutional interpretation that allows accommodations II. THE CURRENT PROCEEDINGS
prevents needless injury to the religious consciences of those
who can have an influence in the legislature; while a We now resume from where we ended in our August 4, 2003
constitutional interpretation that requires accommodations Decision. As mentioned, what remained to be resolved, upon
extends this treatment to religious faiths that are less able to which remand was necessary, pertained to the final task of
protect themselves in the political arena. subjecting this case to the careful application of the
Fourth, exemption from penal laws on account of religion is compelling state interest test, i.e., determining whether
not entirely an alien concept, nor will it be applied for the first respondent is entitled to exemption, an issue which is
time, as an exemption of such nature, albeit by legislative act, essentially factual or evidentiary in nature.
has already been granted to Moslem polygamy and the
criminal law of bigamy. After the termination of further proceedings with the OCA,
and with the transmittal of the Hearing Officer's report,[146]
Finally, we must consider the language of the Religion Clauses along with the evidence submitted by the OSG, this case is
vis-à-vis the other fundamental rights in the Bill of Rights. It once again with us, to resolve the penultimate question of
has been noted that unlike other fundamental rights like the whether respondent should be found guilty of the
right to life, liberty or property, the Religion Clauses are stated administrative charge of "disgraceful and immoral conduct." It
in absolute terms, unqualified by the requirement of "due is at this point then that we examine the report and documents
process," "unreasonableness," or "lawful order." Only the right submitted by the hearing officer of this case, and apply the
to free speech is comparable in its absolute grant. Given the three-step process of the compelling state interest test based on
unequivocal and unqualified grant couched in the language, the evidence presented by the parties, especially the
the Court cannot simply dismiss a claim of exemption based government.
on the Free Exercise Clause, solely on the premise that the law
in question is a general criminal law. [143] If the burden is On the sincerity of religious belief, the Solicitor General
great and the sincerity of the religious belief is not in question, categorically concedes that the sincerity and centrality of
adherence to the benevolent neutrality-accommodation respondent's claimed religious belief and practice are beyond
approach require that the Court make an individual serious doubt.[147] Thus, having previously established the
determination and not dismiss the claim outright. preliminary conditions required by the compelling state
interest test, i.e., that a law or government practice inhibits the
At this point, we must emphasize that the adoption of the free exercise of respondent's religious beliefs, and there being
benevolent neutrality-accommodation approach does not mean no doubt as to the sincerity and centrality of her faith to claim
that the Court ought to grant exemptions every time a free the exemption based on the free exercise clause, the burden
exercise claim comes before it. This is an erroneous reading of shifted to the government to demonstrate that the law or
the framework which the dissent of Mr. Justice Carpio seems practice justifies a compelling secular objective and that it is
to entertain. Although benevolent neutrality is the lens with the least restrictive means of achieving that objective.
which the Court ought to view religion clause cases, the
interest of the state should also be afforded utmost protection. A look at the evidence that the OSG has presented fails to
This is precisely the purpose of the test-to draw the line demonstrate "the gravest abuses, endangering paramount
between mandatory, permissible and forbidden religious interests" which could limit or override respondent's
exercise. Thus, under the framework, the Court cannot simply fundamental right to religious freedom. Neither did the
dismiss a claim under the Free Exercise Clause because the government exert any effort to show that the means it seeks to
conduct in question offends a law or the orthodox view, as achieve its legitimate state objective is the least intrusive
proposed by Mr. Justice Carpio, for this precisely is the means.
protection afforded by the religion clauses of the Constitution.
[144] As stated in the Decision: The OSG merely offered the following as exhibits and their
xxx While the Court cannot adopt a doctrinal formulation that purposes:
can eliminate the difficult questions of judgment in EXHIBIT "A-OSG" AND SUBMARKING - The September
determining the degree of burden on religious practice or 30, 2003 Letter to the OSG of Bro. Raymond B. Leach, Legal
importance of the state interest or the sufficiency of the means Representative of the Watch Tower Bible and Tract Society of
adopted by the state to pursue its interest, the Court can set a the Philippines, Inc.
doctrine on the ideal towards which religious clause
jurisprudence should be directed. We here lay down the PURPOSE: To show that the OSG exerted efforts to examine
doctrine that in Philippine jurisdiction, we adopt the the sincerity and centrality of respondent's claimed religious
benevolent neutrality approach not only because of its merits belief and practice.
as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the
EXHIBIT "B-OSG" AND SUBMARKING - The duly religious freedom. To rule otherwise would be to emasculate
notarized certification dated September 30, 2003 issued and the Free Exercise Clause as a source of right by itself.
signed by Bro. Leach.
Thus, it is not the State's broad interest in "protecting the
PURPOSES: (1) To substantiate the sincerity and centrality of institutions of marriage and the family," or even "in the sound
respondent's claimed religious belief and practice; and (2) to administration of justice" that must be weighed against
prove that the Declaration of Pledging Faithfulness, being a respondent's claim, but the State's narrow interest in refusing
purely internal arrangement within the congregation of the to make an exception for the cohabitation which respondent's
Jehovah's Witnesses, cannot be a source of any legal faith finds moral. In other words, the government must do
protection for respondent. more than assert the objectives at risk if exemption is given; it
In its Memorandum-In-Intervention, the OSG contends that must precisely show how and to what extent those objectives
the State has a compelling interest to override respondent's will be undermined if exemptions are granted.[151] This, the
claimed religious belief and practice, in order to protect Solicitor General failed to do.
marriage and the family as basic social institutions. The
Solicitor General, quoting the Constitution[148] and the To paraphrase Justice Blackmun's application of the
Family Code,[149] argues that marriage and the family are so compelling interest test, the State's interest in enforcing its
crucial to the stability and peace of the nation that the conjugal prohibition, in order to be sufficiently compelling to outweigh
arrangement embraced in the Declaration of Pledging a free exercise claim, cannot be merely abstract or symbolic.
Faithfulness should not be recognized or given effect, as "it is The State cannot plausibly assert that unbending application of
utterly destructive of the avowed institutions of marriage and a criminal prohibition is essential to fulfill any compelling
the family for it reduces to a mockery these legally exalted and interest, if it does not, in fact, attempt to enforce that
socially significant institutions which in their purity demand prohibition. In the case at bar, the State has not evinced any
respect and dignity."[150] concrete interest in enforcing the concubinage or bigamy
charges against respondent or her partner. The State has never
Parenthetically, the dissenting opinion of Mr. Justice Carpio sought to prosecute respondent nor her partner. The State's
echoes the Solicitor General in so far as he asserts that the asserted interest thus amounts only to the symbolic
State has a compelling interest in the preservation of marriage preservation of an unenforced prohibition. Incidentally, as
and the family as basic social institutions, which is ultimately echoes of the words of Messrs. J. Bellosillo and Vitug, in their
the public policy underlying the criminal sanctions against concurring opinions in our Decision, dated August 4, 2003, to
concubinage and bigamy. He also argues that in dismissing the deny the exemption would effectively break up "an otherwise
administrative complaint against respondent, "the majority ideal union of two individuals who have managed to stay
opinion effectively condones and accords a semblance of together as husband and wife [approximately twenty-five
legitimacy to her patently unlawful cohabitation..." and years]" and have the effect of defeating the very substance of
"facilitates the circumvention of the Revised Penal Code." marriage and the family.
According to Mr. Justice Carpio, by choosing to turn a blind
eye to respondent's criminal conduct, the majority is in fact The Solicitor General also argued against respondent's
recognizing a practice, custom or agreement that subverts religious freedom on the basis of morality, i.e., that "the
marriage. He argues in a similar fashion as regards the state's conjugal arrangement of respondent and her live-in partner
interest in the sound administration of justice. should not be condoned because adulterous relationships are
constantly frowned upon by society";[152] and "that State
There has never been any question that the state has an interest laws on marriage, which are moral in nature, take clear
in protecting the institutions of marriage and the family, or precedence over the religious beliefs and practices of any
even in the sound administration of justice. Indeed, the church, religious sect or denomination on marriage. Verily,
provisions by which respondent's relationship is said to have religious beliefs and practices should not be permitted to
impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of override laws relating to public policy such as those of
the Revised Administrative Code, Articles 334 and 349 of the marriage."[153]
Revised Penal Code, and even the provisions on marriage and
family in the Civil Code and Family Code, all clearly The above arguments are mere reiterations of the arguments
demonstrate the State's need to protect these secular interests. raised by Mme. Justice Ynares-Santiago in her dissenting
opinion to our Decision dated August 4, 2003, which she
Be that as it may, the free exercise of religion is specifically offers again in toto. These arguments have already been
articulated as one of the fundamental rights in our addressed in our decision dated August 4, 2003.[154] In said
Constitution. It is a fundamental right that enjoys a preferred Decision, we noted that Mme. Justice Ynares-Santiago's
position in the hierarchy of rights - "the most inalienable and dissenting opinion dwelt more on the standards of morality,
sacred of human rights," in the words of Jefferson. Hence, it is without categorically holding that religious freedom is not in
not enough to contend that the state's interest is important, issue.[155] We, therefore, went into a discussion on morality,
because our Constitution itself holds the right to religious in order to show that:
freedom sacred. The State must articulate in specific terms the (a) The public morality expressed in the law is necessarily
state interest involved in preventing the exemption, which secular for in our constitutional order, the religion clauses
must be compelling, for only the gravest abuses, endangering prohibit the state from establishing a religion, including the
paramount interests can limit the fundamental right to morality it sanctions.[156] Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the
Code of Professional Responsibility for lawyers,[157] or without marriage because once all legal impediments for the
"public morals" in the Revised Penal Code,[158] or "morals" couple are lifted, the validity of the Declaration ceases, and the
in the New Civil Code,[159] or "moral character" in the congregation requires that the couple legalize their union.
Constitution,[160] the distinction between public and secular
morality on the one hand, and religious morality, on the other, At bottom, the slippery slope argument of Mr. Justice Carpio
should be kept in mind;[161] is speculative. Nevertheless, insofar as he raises the issue of
equality among religions, we look to the words of the Religion
(b) Although the morality contemplated by laws is secular, Clauses, which clearly single out religion for both a benefit
benevolent neutrality could allow for accommodation of and a burden: "No law shall be made respecting an
morality based on religion, provided it does not offend establishment of religion, or prohibiting the free exercise
compelling state interests;[162] thereof..." On its face, the language grants a unique advantage
to religious conduct, protecting it from governmental
(c) The jurisdiction of the Court extends only to public and imposition; and imposes a unique disadvantage, preventing the
secular morality. Whatever pronouncement the Court makes government from supporting it. To understand this as a
in the case at bar should be understood only in this realm provision which puts religion on an equal footing with other
where it has authority.[163] bases for action seems to be a curious reading. There are no
"free exercise" of "establishment" provisions for science,
(d) Having distinguished between public and secular morality sports, philosophy, or family relations. The language itself thus
and religious morality, the more difficult task is determining seems to answer whether we have a paradigm of equality or
which immoral acts under this public and secular morality fall liberty; the language of the Clause is clearly in the form of a
under the phrase "disgraceful and immoral conduct" for which grant of liberty. [169]
a government employee may be held administratively liable.
[164] Only one conduct is in question before this Court, i.e., In this case, the government's conduct may appear innocent
the conjugal arrangement of a government employee whose and nondiscriminatory but in effect, it is oppressive to the
partner is legally married to another which Philippine law and minority. In the interpretation of a document, such as the Bill
jurisprudence consider both immoral and illegal.[165] of Rights, designed to protect the minority from the majority,
the question of which perspective is appropriate would seem
(e) While there is no dispute that under settled jurisprudence, easy to answer. Moreover, the text, history, structure and
respondent's conduct constitutes "disgraceful and immoral values implicated in the interpretation of the clauses, all point
conduct," the case at bar involves the defense of religious toward this perspective. Thus, substantive equality-a reading
freedom, therefore none of the cases cited by Mme. Justice of the religion clauses which leaves both politically dominant
Ynares-Santiago apply.[166] There is no jurisprudence in and the politically weak religious groups equal in their
Philippine jurisdiction holding that the defense of religious inability to use the government (law) to assist their own
freedom of a member of the Jehovah's Witnesses under the religion or burden others-makes the most sense in the
same circumstances as respondent will not prevail over the interpretation of the Bill of Rights, a document designed to
laws on adultery, concubinage or some other law. We cannot protect minorities and individuals from mobocracy in a
summarily conclude thereforethat her conduct is likewise so democracy (the majority or a coalition of minorities). [170]
"odious" and "barbaric" as to be immoral and punishable by
law.[167] As previously discussed, our Constitution adheres to the
Again, we note the arguments raised by Mr. Justice Carpio benevolent neutrality approach that gives room for
with respect to charging respondent with conduct prejudicial accommodation of religious exercises as required by the Free
to the best interest of the service, and we reiterate that the Exercise Clause.[171] Thus, in arguing that respondent should
dissent offends due process as respondent was not given an be held administratively liable as the arrangement she had was
opportunity to defend herself against the charge of "conduct "illegal per se because, by universally recognized standards, it
prejudicial to the best interest of the service." Indeed, there is is inherently or by its very nature bad, improper, immoral and
no evidence of the alleged prejudice to the best interest of the contrary to good conscience,"[172] the Solicitor General failed
service.[168] to appreciate that benevolent neutrality could allow for
accommodation of morality based on religion, provided it does
Mr. Justice Carpio's slippery slope argument, on the other not offend compelling state interests.[173]
hand, is non-sequitur. If the Court grants respondent
exemption from the laws which respondent Escritor has been Finally, even assuming that the OSG has proved a compelling
charged to have violated, the exemption would not apply to state interest, it has to further demonstrate that the state has
Catholics who have secured church annulment of their used the least intrusive means possible so that the free exercise
marriage even without a final annulment from a civil court. is not infringed any more than necessary to achieve the
First, unlike Jehovah's Witnesses, the Catholic faith considers legitimate goal of the state, i.e., it has chosen a way to achieve
cohabitation without marriage as immoral. Second, but more its legitimate state end that imposes as little as possible on
important, the Jehovah's Witnesses have standards and religious liberties.[174] Again, the Solicitor General utterly
procedures which must be followed before cohabitation failed to prove this element of the test. Other than the two
without marriage is given the blessing of the congregation. documents offered as cited above which established the
This includes an investigative process whereby the elders of sincerity of respondent's religious belief and the fact that the
the congregation verify the circumstances of the declarants. agreement was an internal arrangement within respondent's
Also, the Declaration is not a blanket authority to cohabit congregation, no iota of evidence was offered. In fact, the
records are bereft of even a feeble attempt to procure any such I, Soledad S. Escritor, do hereby declare that I have accepted
evidence to show that the means the state adopted in pursuing Luciano D. Quilapio, Jr., as my mate in marital relationship;
this compelling interest is the least restrictive to respondent's that I have done all within my ability to obtain legal
religious freedom. recognition of this relationship by the proper public authorities
and that it is because of having been unable to do so that I
Thus, we find that in this particular case and under these therefore make this public declaration pledging faithfulness in
distinct circumstances, respondent Escritor's conjugal this marital relationship.
arrangement cannot be penalized as she has made out a case
for exemption from the law based on her fundamental right to I recognize this relationship as a binding tie before 'Jehovah'
freedom of religion. The Court recognizes that state interests God and before all persons to be held to and honored in full
must be upheld in order that freedoms - including religious accord with the principles of God's Word. I will continue to
freedom - may be enjoyed. In the area of religious exercise as seek the means to obtain legal recognition of this relationship
a preferred freedom, however, man stands accountable to an by the civil authorities and if at any future time a change in
authority higher than the state, and so the state interest sought circumstances make this possible, I promise to legalize this
to be upheld must be so compelling that its violation will union.
erode the very fabric of the state that will also protect the
freedom. In the absence of a showing that such state interest Signed this 28th day of July 1991.
exists, man must be allowed to subscribe to the Infinite. Parenthetically, Escritor's partner, Quilapio, executed a similar
pledge on the same day. Both pledges were executed in
IN VIEW WHEREOF, the instant administrative complaint is Atimonan, Quezon and signed by three witnesses. At the time
DISMISSED. Escritor executed her pledge, her husband was still alive but
living with another woman. Quilapio was likewise married at
SO ORDERED. that time, but had been separated in fact from his wife. Id. at
446.
Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona,
Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. [8] Id. at 447-448, 452-453. Based on the testimony of
Panganiban, C.J., Carpio Morales, and Callejo, Sr., JJ., concur Gregorio Salazar, a member of the Jehovah's Witnesses since
with J. Carpio's dissenting opinion. 1985. As presiding minister since 1991, he is aware of the
Ynares-Santiago, J., see dissenting opinion. rules and regulations of the Congregation. An authenticated
Carpio, J., see dissenting opinion. copy of the magazine article entitled, "Maintaining Marriage
Velasco, Jr., J., no part due to prior action of OCA. Before God and Men," which explains the rationale behind the
Declaration, was also presented.

[1] Estrada v. Escritor, 455 Phil. 411 (2003). [9] Id. at 449.

[2] Id. at 444. Incidentally, Escritor moved for the inhibition of [10] Id. at 452.
Judge Caoibes from hearing her case to avoid suspicion and
bias as she previously filed an administrative case against him. [11] Id. at 449.
Escritor's motion was denied.
[12] See id. at 447-452.
[3] Id. The Code provides:
Sec. 46. Discipline: General Provisions. - [13] Id. at 445, 453, and 457.

(a) No officer or employee in the Civil Service shall be [14] Id. at 596.
suspended or dismissed except for cause as provided by law
and after due process. [15] Id. at 599-600.

(b) The following shall be grounds for disciplinary action: [16] Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271
SCRA 457; Gokongwei v. SEC, G.R. No. 52129, April 21,
xxx xxx xxx 1980, 97 SCRA 78; Commissioner of Public Highways v.
Burgos, G.R. No. L-36706, March 31, 1980, 96 SCRA 831;
(5) Disgraceful and immoral conduct; xxx. Municipality of Daet v. C.A., G.R. No. L-35861, October 18,
[4] Id. at 445. 1979, 93 SCRA 503; and People's Homesite and Housing
Corp. v. Mencias, G.R. No. L-24114, August 16, 1967, 20
[5] Id. at 445, 447. SCRA 1031.

[6] Id. at 445, 453, and 457. [17] See discussion under Estrada v. Escritor, 455 Phil. 411,
458-468 (2003).
[7] Id. at 445-456. The Declaration provides:
DECLARATION OF PLEDGING FAITHFULNESS [18] During primitive times, when there was no distinction
between the religious and secular, and the same authority that
promulgated laws regulating relations between man and man
promulgated laws concerning man's obligations to the [32] Id. at 514, citing DRAKEMAN, D., CHURCH-STATE
supernatural. See id. at 458-459. CONSTITUTIONAL ISSUES 55 (1991), CORD, R.,
SEPARATION OF CHURCH AND STATE: HISTORICAL
[19] This was the time of theocracy, during the rise of the FACT AND CURRENT FICTION 50; and 1 THE DEBATES
Hebrew state and the Mosaic religion. See id. at 459-461. AND PROCEEDINGS IN THE CONGRESS OF THE
UNITED STATES, COMPILED FROM AUTHENTIC
[20] Following the rise of Saul, and the pre-Christian Rome MATERIALS 949-950 (Annala, Gales, J. and Seaton, W.,
which engaged in emperor-worship. See id. at 461-462. eds.). Only two members of U.S. Congress opposed the
resolution, one on the ground that the move was a "mimicking
[21] Id. at 462-463. of European customs, where they made a mere mockery of
thanksgivings," the other on establishment clause concerns.
[22] Id. at 468. Nevertheless, the salutary effect of thanksgivings throughout
Western history was acknowledged and the motion was passed
[23] COHEN, WILLIAM & DANELSKI, DAVID J., without further recorded discussion.
CONSTITUTIONAL LAW: CIVIL LIBERTY AND
INDIVIDUAL RIGHTS 565(4th ed. 1997). [33] Id. at 515, citing Weber, P., Neutrality and First
Amendment Interpretation in EQUAL SEPARATION 3
[24] Id. (1990).

[25] See Estrada v. Escritor, 455 Phil. 411, 479-480 (2003). [34] 330 U.S. 1 (1946). It was in this case that the U.S.
Supreme Court adopted Jefferson's metaphor of "a wall of
[26] COHEN, WILLIAM & DANELSKI, DAVID J., separation between church and state" as encapsulating the
CONSTITUTIONAL LAW: CIVIL LIBERTY AND meaning of the Establishment Clause. Said the U.S. Court:
INDIVIDUAL RIGHTS 575(4th ed. 1997). "The First Amendment has erected a wall between church and
state. That wall must be kept high and impregnable. We could
[27] Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing not approve the slightest breach...." Id. at 18.
BETH, L., AMERICAN THEORY OF CHURCH AND
STATE 71 (1958). [35] Everson v. Board of Education, 330 U.S. 1, 18 (1947).

[28] See id. at 487, 512-516. [36] See Estrada v. Escritor, 455 Phil. 411, 516 (2003), citing
THE CONSTITUTION AND RELIGION 1541; and Kurland,
[29] Id. at 515, citing BUZZARD, L., ERICSSON, S., THE Of Church and State and the Supreme Court, 29
BATTLE FOR RELIGIOUS LIBERTY 46 (1980); BETH, L., U.CHI.L.REV. 1, 5 (1961). Parenthetically, the U.S. Court in
AMERICAN THEORY OF CHURCH AND STATE 71 & 72 Employment Division, Oregon Department of Human
(1958); and GROSSMAN, J.B. AND WELLS, R.S., Resources v. Smith, 494 U.S. 872 (1990), echoed the rationale
CONSTITUTIONAL LAW & JUDICIAL POLICY MAKING of the separationists, when it held that if government acts in
1276 (2nd ed. 1980). pursuit of a generally applicable law with a secular purpose
that merely incidentally burdens religious exercise, the First
[30] Id. at 515, citing THE CONSTITUTION AND Amendment has not been offended.
RELIGION 1541.
[37] 374 U.S. 203 (1963).
[31] See DRAKEMAN, D., CHURCH-STATE
CONSTITUTIONAL ISSUES 55 (1991), citing CORD, R., [38] Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing
SEPARATION OF CHURCH AND STATE: HISTORICAL BUZZARD, L., ERICSSON, S., THE BATTLE FOR
FACT AND CURRENT FICTION 50. Thus: RELIGIOUS LIBERTY 60 (1980).
The [separationist] school of thought argues that the First
Congress intended to allow government support of religion, at [39] Id. at 517-518, citing Kelley, D. Strict Neutrality and the
least as long as that support did not discriminate in favor of Free Exercise of Religion in WEBER, P., EQUAL
one particular religion. . . the Supreme Court has overlooked SEPARATION 1189 (1990).
many important pieces of history. Madison, for example, was
on the congressional committee that appointed a chaplain, he [40] Id. at 518, citing 75. Monsma, S. The Neutrality Principle
declared several national days of prayer and fasting during his and a Pluralist Concept of Accommodation, in WEBER, P.,
presidency, and he sponsored Jefferson's bill for punishing EQUAL SEPARATION 74-75 (1990).
Sabbath breakers; moreover, while president, Jefferson
allowed federal support of religious missions to the Indians. . . [41] I.e., the "garden" of the church must be walled in for its
And so, concludes one recent book, "there is no support in the own protection from the "wilderness" of the world with its
Congressional records that either the First Congress, which potential for corrupting those values so necessary to religious
framed the First Amendment, or its principal author and commitment. According to Williams, this wall is breached, for
sponsor, James Madison, intended that Amendment to create a the church is in the state, and so the remaining purpose of the
state of complete independence between religion and wall is to safeguard religious liberty. Williams' wall, therefore,
government. In fact, the evidence in the public documents would allow for interaction between church and state, but is
goes the other way." Id. at 513-514. strict with regard to state action which would threaten the
integrity of religious commitment. His conception of [60] Carmella, Angela C., State Constitutional Protection of
separation is not total such that it provides basis for certain Religious Exercise: An Emerging Post-Smith Jurisprudence,
interactions between church and state dictated by apparent 1993 B.Y.U.L.REV. 275, 277 (1993).
necessity or practicality.
[61] 406 U.S. 205 (1972).
See discussion of the birth of the theory in Estrada v. Escritor,
455 Phil. 411, 518-519 (2003). [62] Id. at 214-215, 219-220.

[42] 343 U.S. 306 (1951). [63] Ivan E. Bodensteiner, The Demise of the First
Amendment as a Guarantor of Religious Freedom, 27
[43] Zorach v. Clauson, 343 U.S. 306, 312-314 (1951). WHITTIER L. REV. 415,417-418 (2005). (citations omitted)

[44] Estrada v. Escritor, 455 Phil. 411, 521-522 (2003). [64] See Pepper, Stephen, Conflicting Paradigms of Religious
Freedom: Liberty Versus Equality, 1993 B. Y. U. L. REV. 7,
[45] Marsh v. Chambers, 463 US 783, 792-93 (1983). 30-32 (1993).

[46] Sherbert v. Verner, 374 US 398, 403-04 (1963). [65] Id. at 30-32.

[47] Bowen v. Kendrick, 487 US 589, 611 (1988). [66] Id.

[48] Board of Education v. Allen, 392 US 236, 238 (1968). [67] Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing
STEPHENS, JR., O.H. AND SCHEB, II J.M., AMERICAN
[49] Everson v. Board of Education, 330 US 1, 17 (1947). CONSTITUTIONAL LAW 522-523 and 526 (2nd ed. 1999).

[50] Committee for Public Education and Religious Liberty v. [68] Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-
Regan, 444 US 646, 653-54 (1980). Flynn v. Johnson: More Rotted Fruit From Employment
Division v. Smith, 80 CHI.-KENT L. REV. 1287, 1304 (2005).
[51] Cited in McConnel, M., Accommodation of Religion: An
Update and a Response to the Critics, 60 THE GEORGE [69] 494 U.S. 872 (1990).
WASHINGTON LAW REVIEW 685, 688. See Estrada v.
Escritor, 455 Phil. 411, 522-523 (2003). [70] CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 1211 (2nd ed. 2002).
[52] Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing
Carter, S., The Resurrection of Religious Freedom, 107 [71] 494 U.S. 872, 878-889 (1990), cited in CHEMERINSKY,
HARVARD LAW REVIEW 118, 1280129 (1993). ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND
POLICIES 1211 (2nd ed. 2002).
[53] Id. at 482, citing Sullivan, K., Religion and Liberal
Democracy, 59 THE UNIVERSITY OF CHICAGO LAW [72] 494 U.S. 872, 879 (1990), cited in CHEMERINSKY,
REVIEW 195, 214-215 (1992). ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND
POLICIES 1212 (2nd ed. 2002).
[54] Id.
[73] 494 U.S. 872, 881 (1990), cited in CHEMERINSKY,
[55] 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson- POLICIES 1212 (2nd ed. 2002).
Flynn v. Johnson: More Rotted Fruit From Employment
Division v. Smith, 80 CHI.-KENT L. REV. 1287, 1302 (2005). [74] 494 U.S. 872, 882 (1990), cited in CHEMERINSKY,
ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND
[56] Carmella, Angela C., State Constitutional Protection of POLICIES 1212 (2nd ed. 2002).
Religious Exercise: An Emerging Post-Smith Jurisprudence,
1993 B.Y.U.L.REV. 275, 277 (1993). [75] 494 U.S. 872, 884 (1990), cited in CHEMERINSKY,
ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND
[57] Sherbert v. Verner, 374 U.S. 398, 403 (1963). POLICIES 1212 (2nd ed. 2002).

[58] Id. at 406. [76] 494 U.S. 872, 888 (1990), cited in CHEMERINSKY,
ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND
[59] Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing POLICIES 1212 (2nd ed. 2002).
Lupu, I., The Religion Clauses and Justice Brennan in Full, 87
CALIFORNIA LAW REVIEW 1105, 1114, 1105 and 1110 [77] See CHEMERINSKY, ERWIN, CONSTITUTIONAL
(1999). LAW: PRINCIPLES AND POLICIES 1213 (2nd ed. 2002).

[78] Employment Division v. Smith, 494 U.S. 872, 906


(1990). (O�Connor, J. concurring in the judgment) This
portion of her concurring opinion was supported by Justices Speech and Religion Clause Cases, 48 VANDERBILT LAW
Brennan, Marshall and Blackmun who dissented from the REVIEW, 1335, 1350-1351 (1995).
Court's decision; cited in CHEMERINSKY, ERWIN,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES [94] Reynolds v. U.S., 98 U.S. 145 (1878); Minersville
1212 (2nd ed. 2002). School District v. Gobitis, 310 U.S. 586 (1940); and
Employment Division, Oregon Department of Human
[79] Id at 903. (O'Connor, J. concurring in the judgment), cited Resources v. Smith, 494 U.S. 872 (1990).
in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 1212 (2nd ed. 2002). [95] Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing
McCoy, T., A Coherent Methodology for First Amendment
[80] Id. at 902. (O'Connor, J. concurring in the judgment) cited Speech and Religion Clause Cases, 48 VANDERBILT LAW
in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: REVIEW, 1335, 1350-1351 (1995).
PRINCIPLES AND POLICIES 1212 (2nd ed. 2002).
[96] Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-
[81] Id. at 908-909. (Blackmun, J. dissenting), cited in Flynn v. Johnson: More Rotted Fruit From Employment
CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: Division v. Smith, 80 CHI.-KENT L. REV. 1287, 1327 (2005).
PRINCIPLES AND POLICIES 1213 (2nd ed. 2002).
[97] Bodensteiner, Ivan E., The Demise of the First
[82] Tebbe, Nelson, Free Exercise and the Problem of Amendment As a Guarantor of Religious Freedom, 27
Symmetry, 56 HASTINGS L.J. 699 (2005). WHITTIER L. REV. 415, 419 (2005).

[83] Id. [98] Aden, Steven H & Strang, Lee J., When a "Rule" Doesn't
Rule: The Failure of the Oregon Employment Division v.
[84] Aden, Steven H & Strang, Lee J., When a "Rule" Doesn't Smith "Hybrid Rights Exception", 108 PENN. ST. L. REV.
Rule: The Failure of the Oregon Employment Division v. 573, 584 (2003).
Smith "Hybrid Rights Exception," 108 PENN. ST. L. REV.
573, 581 (2003). [99] See COHEN, WILLIAM & DANELSKI, DAVID J.,
CONSTITUTIONAL LAW: CIVIL LIBERTY AND
[85] Id. INDIVIDUAL RIGHTS 620-621 (4th ed. 1997).

[86] Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing [100] Id.
McConnell, M., Accommodation of Religion: An Update and
a Response to the Critics, 60 THE GEORGE WASHINGTON [101] Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing
LAW REVIEW 685, 726 (1992). Carter, S., The Resurrection of Religious Freedom, 107
HARVARD LAW REVIEW 118 (1993).
[87] Id. at 482, citing McCoy, T., A Coherent Methodology for
First Amendment Speech and Religion Clause Cases, 48 [102] 42 U.S.C. §2000bb.
VANDERBILT LAW REVIEW, 1335, 1350-1352 (1995).
[103] 42 U.S.C. §2000bb, Sec. (a) (4), cited in
[88] Tebbe, Nelson, Free Exercise and the Problem of CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
Symmetry, 56 HASTINGS L.J. 699 (2005). PRINCIPLES AND POLICIES 1216 (2nd ed. 2002).

[89] Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing II [104] Id.
DUCAT, C., CONSTITUTIONAL INTERPRETATION 1180
& 1191 (2000). See also Sullivan, K., Religion and Liberal [105] CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
Democracy, 59 THE UNIVERSITY OF CHICAGO LAW PRINCIPLES AND POLICIES 1212 (2nd ed. 2002).
REVIEW 195, 216 (1992).
[106] City of Boerne v. Flores, 521 U.S. 507 (1997), cited in
[90] Id. at 502, citing McConnell, M., Religious Freedom at a CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
Crossroads, 59 THE UNIVERSITY OF CHICAGO LAW PRINCIPLES AND POLICIES 1216 (2nd ed. 2002).
REVIEW 115, 139 (1992).
[107] City of Boerne clearly invalidated the RFRA as applied
[91] Id., citing Sullivan, K., Religion and Liberal Democracy, to state and local governments, but did not resolve the
59 THE UNIVERSITY OF CHICAGO LAW REVIEW 195, constitutionality of the law as applied to the federal
216 (1992). government. Some federal courts have expressly ruled that the
RFRA is constitutional as applied to the federal government.
[92] Tebbe, Nelson, Free Exercise and the Problem of See CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
Symmetry, 56 HASTINGS L.J. 699 (2005). PRINCIPLES AND POLICIES 1216 (2nd ed. 2002).

[93] Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing [108] See NOONAN, JOHN T., JR. & GAFFNEY, EDWARD
McCoy, T., A Coherent Methodology for First Amendment MCGLYNN, JR., RELIGIOUS FREEDOM: HISTORY,
CASES, AND OTHER MATERIALS ON THE
INTERACTION OF RELIGION AND GOVERNMENT 531 [125] CONSTITUTION, (1935) Art. XIII, Sec. 5;
(2001). CONSTITUTION, (1973), Art. XV, Sec. 8(8); and
CONSTITUTION, (1987), Art. XIV, Sec. 3(3).
[109] Carmella, Angela C., State Constitutional Protection of
Religious Exercise: An Emerging Post-Smith Jurisprudence, [126] "Divine Providence" in the 1935 and 1973
1993 B.Y.U.L.REV. 275, 278 (1993). Constitutions; and "Almighty God" in the 1987 Constitution.

[110] Johnson, Bradley C., By its Fruits Shall Ye Know; [127] Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).
Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 CHI.-KENT L. REV. 1287, [128] Id. at 564 and 575.
1327 (2005).
[129] Id. at 563-564.
[111] Estrada v. Escritor, 455 Phil. 411, 526 (2003).
[130] Id. at 574. As stated in the Decision dated August 4,
[112] Id. at 527, citing BUZZARD, L., ERICSSON, S., THE 2003:
BATTLE FOR RELIGIOUS LIBERTY 61-62 (1980). Considering the American origin of the Philippine religion
clauses and the intent to adopt the historical background,
[113] Walz v. Tax Commission, 397 U.S. 664, 673 (1969). nature, extent and limitations of the First Amendment of the
U.S. Constitution when it was included in the 1935 Bill of
[114] 343 U.S. 306 (1952). Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence
[115] 463 U.S. 783 (1983). in explaining the nature, extent and limitations of these
clauses. However, a close scrutiny of these cases would also
[116] McConnell, M., Accommodation of Religion: An reveal that while U.S. jurisprudence on religion clauses flows
Update and a Response to the Critics, 60 THE GEORGE into two main streams of interpretation - separation and
WASHINGTON LAW REVIEW 685, 715 (1992). benevolent neutrality - the well-spring of Philippine
jurisprudence on this subject is for the most part, benevolent
[117] 333 U.S. 203 (1948). neutrality which gives room for accommodation. Id. at 536.
[131] 101 Phil. 386 (1957).
[118] Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing
BUZZARD, L., ERICSSON, S., THE BATTLE FOR [132] G.R. No. 95770, March 1, 1993, 219 SCRA 256.
RELIGIOUS LIBERTY 61-63 (1980).
[133] Gerona v. Secretary of Education, 106 Phil. 2 (1959). In
[119] KMIEC, DOUGLAS W. & PRESSER, STEPHEN B., this prior case, petitioners were also members of the Jehovah's
INDIVIDUAL RIGHTS AND THE AMERICAN Witnesses. They challenged a Department Order issued by the
CONSTITUTION 105 (1998). Secretary of Education implementing Republic Act No. 1265
which prescribed compulsory flag ceremonies in all public
[120] Employment Division v. Smith, 494 U.S. 872, 903 schools. In violation of the Order, petitioner's children refused
(1990), cited in CHEMERINSKY, ERWIN, to salute the Philippine flag, sing the national anthem, or recite
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES the patriotic pledge, hence they were expelled from school.
1212 (2nd ed. 2002). Seeking protection under the Free Exercise Clause, petitioners
claimed that their refusal was on account of their religious
[121] See, e.g. Michael McConnell, Free Exercise belief that the Philippine flag is an image and saluting the
Revisionism and the Smith Decision, 57 U. CHI. L. REV. same is contrary to their religious belief. The Court denied
1109 (1990); Jesse H. Choper, The Rise and Decline of the exemption, and sustained the expulsion of petitioners'
Constitutional Protection of Religious Liberty, 70 NEB. L. children, on the ground that "If the exercise of religious belief
REV. 651 (1991) (criticizing Smith). Cited in clashes with the established institutions of society and with the
CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: law, then the former must yield to the latter."
PRINCIPLES AND POLICIES 1213 (2nd ed. 2002).
[134] Id. at 270-271.
[122] McConnell, The Origins and Historical Understanding
of Free Exercise of Religion, 103 HARVARD LAW REVIEW [135] G.R. No. L-25246, September 12, 1974, 59 SCRA 54.
1410, 1416-1417 (1990). See also Basa v. Federacion Obrera, G.R. No. L-27113,
November 19, 1974, 61 SCRA 93; Gonzalez v. Central
[123] CONSTITUTION, (1935), Art. VI, Sec. 22, par 3(b); Azucarera de Tarlac Labor Union, G.R. No. L-38178, October
CONSTITUTION, (1973), Art. VI, Sec. 22(3); and 3, 1985, 139 SCRA 30.
CONSTITUTION, (1987), Art.VI, Sec. 28(3).
[136] Victoriano v. Elizalde Rope Workers Union, G.R. No. L-
[124] CONSTITUTION, (1935), Art. VI, Sec. 23(3); 25246, September 12, 1974, 59 SCRA 54, 74-75. The Court
CONSTITUTION, (1973), Art. VIII, Sec. 18(2); and stressed that "(a)lthough the exemption may benefit those who
CONSTITUTION, (1987), Art. VI, Sec. 29(2). are members of religious sects that prohibit their members
from joining labor unions, the benefit upon the religious sects
is merely incidental and indirect." In enacting Republic Act [147] Rollo, pp. 687-689.
No. 3350, Congress merely relieved the exercise of religion by
certain persons of a burden imposed by union security [148] OSG Memorandum-In-Intervention, rollo, pp. 20-21,
agreements which Congress itself also imposed through the citing CONSTITUTION, Art. II, Sec. 12, which provides:
Industrial Peace Act. The Court concluded the issue of "The State recognizes the sanctity of family life and shall
exemption by citing Sherbert which laid down the rule that protect and strengthen the family as a basic autonomous social
when general laws conflict with scruples of conscience, institution."
exemptions ought to be granted unless some "compelling state
interest" intervenes. The Court then abruptly added that "(i)n [149] Id. at 21, citing the Family Code, Art. 149, which
the instant case, We see no compelling state interest to provides: "The family, being the foundation of the nation, is a
withhold exemption." Id. basic social institution which public policy cherishes and
protects. Consequently, family relations are governed by law
[137] Estrada v. Escritor, 455 Phil. 411, 576-578 (2003). and no custom, practice or agreement destructive of the family
shall be recognized or given effect."
[138] Id. at 529-531.
[150] Id. at 21-22.
[139] 98 U.S. 145 (1878).
[151] See Estrada v. Escritor, 455 Phil. 411, 529-531 (2003).
[140] See KMIEC, DOUGLAS, W, & PRESSER, STEPHEN
B, INDIVIDUAL RIGHTS AND THE AMERICAN [152] OSG Memorandum-In-Intervention, rollo, p. 23.
CONSTITUTION 105 (1998). In this case, the issue was
whether a general federal law criminalizing polygamy can be [153] Id. at 26.
applied to a Mormon whose religion included that practice.
The U.S. Court, in affirming Reynold's conviction, ruled that [154] Estrada v. Escritor, 455 Phil. 411, 580-595 (2003). This
the prohibition of polygamy was justified by the importance of part of the decision addressed the issues of morality raised by
monogamous, heterosexual marriage, a practice upon which Mme. Justice Ynares-Santiago and Mr. Justice Vitug, who also
society may be said to be built, and perhaps even upon which had a separate opinion, albeit differing in conclusion.
democratic traditions depend. Thus, according to the U.S.
Court, this important societal interest prevails over the [155] Id. at 580.
countervailing religious practice of the Mormons.
[156] Id. at 586-588.
[141] A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA
193. [157] Rule 1.01 of the Code of Professional Responsibility
provides that, "(a) lawyer shall not engage in unlawful,
[142] 494 U.S. 872 (1990). (O'Connor, J. concurring) dishonest, immoral or deceitful conduct. (emphasis supplied)
According to Justice O'Connor:
...Even if, as an empirical matter, a government's criminal laws [158] Title Six of the Revised Penal Code is entitled Crimes
might usually serve a compelling interest in health, safety, or against Public Morals and includes therein provisions on
public order, the First Amendment at least requires a case-by- gambling and betting. (emphasis supplied)
case determination of the question, sensitive to the facts of
each particular claim... Given the range of conduct that a State [159] The New Civil Code provides, viz:
might legitimately make criminal, we cannot assume, merely "Article 6. Rights may be waived, unless the waiver is
because a law carries criminal sanctions and is generally contrary to law, public order, public policy, morals, or good
applicable, that the First Amendment never requires the State customs or prejudicial to a third person with a right recognized
to grant a limited exemption for religiously motivated conduct. by law.

Parenthetically, J. Brennan, J. Marshall, and J. Blackmun Article 21. Any person who willfully causes loss or injury to
joined Parts I and II of Justice O'Connor's opinion, including another in a manner that is contrary to morals, good customs
the above-cited portions, but did not concur in the judgment. or public policy shall compensate the latter for the damage.
[143] See Pepper, Stephen, Conflicting Paradigms of
Religious Freedom: Liberty Versus Equality, 1993 B. Y. U. L. Article 1306. The contracting parties may establish such
REV. 7, 12-13 (1993). stipulations, clauses, terms and conditions as they may deem
convenient, provided that are not contrary to law, morals, good
[144] Estrada v. Escritor, 455 Phil. 411, 574-575 (2003). customs, public order, or public policy.

[145] Id., citing McConnell, M., Religious Freedom at a Article 1409. The following contracts are inexistent and void
Crossroads, 59(1) UNIV. OF CHICAGO LAW REVIEW 115, from the beginning:
169 (1992).
(1) Those whose cause, object or purpose is contrary to law,
[146] Dated May 6, 2005, by retired Associate Justice Romulo morals, good customs, public order or public policy; x x x"
S. Quimbo, rollo, p. 714. (emphases supplied)
[160] Article XIV, Section 3 provides in relevant part, viz:
employee.[1] Even where the Court has viewed certain cases
All educational institutions shall include the study of the with human understanding and compassion, it has insisted that
Constitution as part of the curricula. no untoward conduct involving public officers should be left
without proper and commensurate sanction.[2] The
They shall inculcate patriotism and nationalism, foster love of compassion is shown through relatively light penalties. Never,
humanity, respect for human rights, appreciation of the role of however, has this Court justified, condoned, or blessed the
national heroes in the historical development of the country, continuation of an adulterous or illicit relationship such as the
teach the rights and duties of citizenship, strengthen ethical one in this case, after the same has been brought to its
and spiritual values, develop moral character and personal attention.
discipline, encourage critical and creative thinking, broaden
scientific and technological knowledge, and promote Is it time to adopt a more liberal approach, a more "modern"
vocational efficiency. (emphasis supplied) view and a more permissive pragmatism which allow
[161] Estrada v. Escritor, 455 Phil. 411, 586 (2003). adulterous or illicit relations to continue provided the job
performance of the court employee concerned is not affected
[162] Id. at 589-590. and the place and order in the workplace are not
compromised? When does private morality involving a court
[163] Id. at 591. employee become a matter of public concern?

[164] Id. at 592. The Civil Service Law punishes public officers and employees
for disgraceful and immoral conduct.[3] Whether an act is
[165] Id. at 593. immoral within the meaning of the statute is not to be
determined by respondent's concept of morality. The law
[166] Id. at 593-595. provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it
[167] Id. at 594-595. condemns.[4]

[168] Id. at 595-596. The ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards. For those in
[169] Pepper, Stephen, Conflicting Paradigms of Religious the service of the Government, provisions of law and court
Freedom: Liberty Versus Equality, 1993 B. Y. U. L. REV. 7, 12 precedents also have to be considered. The task is elusive.
(1993).
The layman's definition of what is "moral" pertains to
[170] Id. at 51. excellence of character or disposition. It relates to the
distinction between right and wrong; virtue and vice; ethical
[171] Estrada v. Escritor, 455 Phil. 411, 574 (2003). praise or blame. Moral law refers to the body of requirements
in conformity to which virtuous action consists. Applied to
[172] OSG Memorandum-In-Intervention, rollo, p. 708. persons, it is conformity to the rules of morality, being
virtuous with regards to moral conduct.[5]
[173] See Estrada v. Escritor, 455 Phil. 411, 536-554 (2003).
That which is not consistent with or not conforming to moral
[174] Id. at 529-531. law, opposed to or violating morality, and now, more often,
morally evil or impure, is immoral. Immoral is the state of not
being virtuous with regard to sexual conduct.[6]
DISSENTING OPINION
The term begs the definition. Hence, anything contrary to the
YNARES-SANTIAGO, J.: standards of moral conduct is immoral. A grossly immoral act
must be so corrupt and false as to constitute a criminal act or
With due respect, I am unable to agree with the finding of the so unprincipled as to be reprehensible to a high degree.[7]
majority that "in this particular case and under these particular
circumstances, respondent Escritor's conjugal arrangement Anything plainly evil or dissolute is, of course, unchangingly
does not constitute disgraceful and immoral conduct" and its immoral. However, at the fringes or boundary limits of what
decision to dismiss the administrative complaint filed by is morally acceptable and what is unacceptably wrong, the
petitioner against respondent Soledad S. Escritor. concept of immorality tends to shift according to
circumstances of time, person, and place. When a case
The issue in this case is simple. What is the meaning or involving the concept of immorality comes to court, the
standard of "disgraceful and immoral conduct" to be applied applicable provisions of law and jurisprudence take center
by the Supreme Court in disciplinary cases involving court stage.
personnel?
Those who choose to tolerate the situation where a man and a
The degree of morality required of every employee or official woman separated from their legitimate spouses decide to live
in the public service has been consistently high. The rules are together in an "ideal" and yet unlawful union state - or more
particularly strict when the respondent is a Judge or a court specifically, those who argue that respondent's cohabiting with
a man married to another woman is not something which is Indeed, the decision in this case is not limited to court
willful, flagrant, or shameless - show a moral indifference to interpreter Soledad Escritor. It is not a pro hac vice ruling. It
the opinion of the good and respectable members of the applies to court employees all over the country and to
community in a manner prejudicial to the public service. everybody in the civil service. It is not a private ruling but one
which is public and far-reaching in its consequences.
Insofar as concepts of morality are concerned, various
individuals or cultures may indeed differ. In certain countries, In the 1975 case of De Dios v. Alejo,[12] the Court applied
a woman who does not cover herself with a burka from head compassion and empathy but nonetheless recognized as most
to foot may be arrested for immoral behavior. In other important a mending of ways through a total breaking of
countries, near nudity in beaches passes by unnoticed. In the relationships. The facts in that case are strikingly similar to
present case, the perceived fixation of our society over sex is those in this case. Yet, the Court required a high degree of
criticized. The lesser degree of condemnation on the sins of morality even in the presence of apparently exculpating
laziness, gluttony, vanity, selfishness, avarice and cowardice is circumstances. It was stated:
decried as discriminatory. While it is permissible to view with human understanding and
compassion a situation like that in which respondents find
The issue in this case is legal and not philosophical. It is a themselves, the good of the service and the degree of morality
limited one. Is respondent Soledad S. Escritor guilty of which every official and employee in the public service must
"disgraceful and immoral" conduct in the context of the Civil observe, if respect and confidence are to be maintained by the
Service Law? Are there any sanctions that must be imposed? government in the enforcement of the law, demand that no
untoward conduct on his part, affecting morality, integrity and
We cannot overlook the fact that respondent Escritor would efficiency, while holding office should be left without proper
have been convicted for a criminal offense if the offended and commensurate sanction, all attendant circumstances taken
party had been inclined and justified to prosecute her prior to into account. In the instant case, We cannot close our eyes to
his death in 1998. Even now, she is a co-principal in the crime the important considerations that respondents have rendered
of concubinage. A married woman who has sexual intercourse government service for more than thirty-three and twenty-five
with a man not her husband, and the man who has carnal years, respectively, and that there is no showing that they have
knowledge of her knowing her to be married, commit the ever been found guilty of any administrative misconduct
crime of adultery.[8] Abandonment by the legal husband during all those periods. In the case of respondent Alejo, it
without justification does not exculpate the offender; it merely seems rather sadistic to make her suffer the extreme penalty of
mitigates the penalty. dismissal from the service after she had taken care of her co-
respondent's four children, giving them the needed love and
The concubine with whom a married man cohabits suffers the attention of a foster mother after they were completely
penalty of destierro.[9] It is true that criminal proceedings abandoned by their errant and unfaithful natural mother. Even
cannot be instituted against persons charged with adultery or respondent Marfil, if to a lesser degree, is deserving of
concubinage except upon complaint of the offended party.[10] compassion. Most importantly, respondents have amply
This does not mean that no actionable offense has been demonstrated that they recognize their mistake and have,
committed if the offended party does not press charges. It therefore, actually mended their ways by totally breaking their
simply cannot be prosecuted. The conduct is not thereby relationship complained of, in order to conform with the
approved, endorsed or commended. It is merely tolerated. imperatives of public interest. (Emphasis supplied)
The standards for those in the judicial service are quite
The inescapable fact in this case is that acts defined as exacting.
criminal under penal law have been committed.
The Court has ruled that in the case of public servants who are
There are experts in Criminal Law who believe that the codal in the judiciary, their conduct and behavior, from the presiding
provisions on adultery and concubinage are terribly outmoded judge to the lowliest clerk, must not only be characterized by
and should be drastically revised. However, the task of propriety and decorum, but above all else, must be above
amendment or revision belongs to Congress, and not to the suspicion.[13]
Supreme Court.
In Burgos v. Aquino,[14] it was ruled:
Our existing rule is that an act so corrupt or false as to The Code of Judicial Ethics mandates that the conduct of court
constitute a criminal act is "grossly immoral."[11] It is not personnel must be free from any whiff of impropriety, not only
merely "immoral." Respondent now asks the Court to go all with respect to his duties in the judicial branch but also to his
the way to the opposite extreme and condone her illicit behavior outside the court as a private individual. There is no
relations with not even an admonition or a slight tap on the dichotomy of morality; a court employee is also judged by his
wrist. private morals. These exacting standards of morality and
decency have been strictly adhered to and laid down by the
I do not think the Court is ready to render a precedent-setting Court to those in the service of the judiciary. Respondent, as a
decision to the effect that, under exceptional circumstances, court stenographer, did not live up to her commitment to lead a
employees of the judiciary may live in a relationship of moral life. Her act of maintaining relations with Atty. Burgos
adultery or concubinage with no fear of any penalty or speaks for itself.
sanction and that after being discovered and charged, they may Respondent Aquino was a court stenographer who was
continue the adulterous relationship until death ends it. suspended for six months for maintaining illicit relations with
the husband of complainant Virginia E. Burgos. The Court characterized by faithfulness and devotion to one another.
therein stated that a second offense shall result in dismissal. However, the "informal conjugal relationship" is not between
two single and otherwise eligible persons where all that is
We should not lose sight of the fact that the judicial system missing is a valid wedding ceremony. The two persons who
over which it presides is essentially composed of human started to live together in an ostensible marital relationship are
beings who, as such, are naturally prey to weakness and prone married to other persons.
to errors. Nonetheless, in Ecube-Badel v. Badel,[15] we
imposed on respondent a suspension for six months and one We must be concerned not with the dogmas or rules of any
day to one year with warning of dismissal should the illicit church or religious sect but with the legal effects under the
relations be repeated or continued. Civil Service Law of an illicit or adulterous relationship
characterized by the facts of this case.
In Nalupta v. Tapec,[16] a deputy sheriff was suspended, also
for six months, for having illicit relations with a certain There is no conflict in this case between the dogmas or
Cristian Dalida who begot a son by him. His wife complained doctrines of the Roman Catholic Church and those of the
and neighbors confirmed that Tapec was frequently seen Jehovah's Witnesses or any other church or denomination.
leaving the house of Consolacion Inocencio in the morning The perceived conflict is non-existing and irrelevant.
and returning to it in the afternoon. Tapec and Inocencio
begot two children. Consistently with the other cases, we The issue is legal and not religious. The terms "disgraceful"
imposed the penalty of suspension for the first offense with the and "immoral" may be religious concepts, but we are
graver penalty of dismissal for a second offense. concerned with conduct which under the law and
jurisprudence is proscribed and, if perpetrated, how it should
The earlier case of Aquino v. Navarro[17] involved an officer be punished.
in the Ministry of Education, Culture and Sports who was
abandoned by her husband a year after their marriage and who Respondent cannot legally justify her conduct by showing that
lived alone for eighteen years with their child. Pretending that it was morally right by the standards of the congregation to
she sincerely believed her husband to have died, she entered which she belongs. Her defense of freedom of religion is
into a marital relationship with Gonzalo Aquino and had unavailing. Her relationship with Mr. Quilapio is illicit and
children by him in 1968 and 1969. Eighteen days before their immoral, both under the Revised Administrative Code[18] and
third child was born on May 25, 1975, the two decided to get the Revised Penal Code,[19] notwithstanding the supposed
married. Notwithstanding the illicit relationship which imprimatur given to them by their religion.
blossomed into a bigamous marriage, the full force of the law
was not applied on her, "considering the exceptional The peculiar religious standards alleged to be those of the sect
circumstances that befell her in her quest for a better life." to which respondent belongs can not shield her from the
Still, a penalty of six months suspension was imposed with a effects of the law. Neither can her illicit relationship be
warning that "any moral relapse on her part will be severely condoned on the basis of a written agreement approved by
dealt with." their religious community. To condone what is inherently
wrong in the face of the standards set by law is to render
Times are changing. Illicit sex is now looked upon more nugatory the safeguards set to protect the civil service and, in
kindly. However, we should not completely disregard or this case, the judiciary.
overlook a relationship of adultery or concubinage involving a
court employee and not order it to be terminated. It should not The Court cannot be the instrument by which one group of
ignore what people will say about our moral standards and people is exempted from the effects of these laws just because
how a permissive approach will be used by other court they belong to a particular religion. Moreover, it is the sworn
employees to freely engage in similarly illicit relationship with mandate of the Court to supervise the conduct of an employee
no fear of disciplinary punishment. of the judiciary, and it must do so with an even hand
regardless of her religious affiliation.
As earlier mentioned, respondent Escritor and Luciano
Quilapio, Jr. had existing marriages with their respective I find that respondent's "Declaration of Pledging Faithfulness"
legitimate spouses when they decided to live together. To give does nothing for her insofar as this administrative matter is
an aura of regularity and respectability to what was undeniably concerned, for written therein are admissions regarding the
an adulterous and, therefore, immoral relationship, the two legal impediments to her marrying Quilapio. In the said
decided to acquire through a religious ceremony what they document, she even pledged to seek all avenues to obtain legal
could not accomplish legally. They executed on July 28, 1991 recognition by civil authorities of her union with Quilapio.[20]
the "Declaration of Pledging Faithfulness" to make their However, the record is silent as to any effort on respondent's
relationship what they alleged it would be - a binding tie part to effect this covenant.
before Jehovah God.
The evidence shows that respondent repeatedly admitted the
In this case, respondent is charged not as a Jehovah's Witness existence of the legal infirmities that plague her relationship
but in her capacity as a court employee. It is contended that with Quilapio.[21] As a court interpreter, she is an integral
respected elders of the Jehovah's Witnesses sanction "an member of the judiciary and her service as such is crucial to
informal conjugal relationship" between respondent and her the administration of justice. Her acts and omissions
marital partner for more than two decades, provided it is constitute a possible violation of the law - the very same law
that she is sworn to uphold as an employee of the judiciary. and unacceptable religious conduct which should be prevented
How can she work under the pretense of being a contributing despite claims that it forms part of religious freedom.
force to the judicial system if she herself is committing acts
that may constitute breaking the law? In Ebralinag v. Division Superintendent of Schools,[27] we
validated the exemption of Jehovah's Witnesses from coerced
Respondent invokes her constitutional right to religious participation in flag ceremonies of public schools. Following
freedom. The separation of church and state has been the ruling in West Virginia v. Barnette,[28] we declared that
inviolable in this jurisdiction for a century. However, the unity and loyalty, the avowed objectives of flag ceremonies,
doctrine is not involved in this case.[22] Furthermore, the cannot be attained through coercion. Enforced unity and
legislature made cohabitation with a woman who is not one's loyalty is not a good that is constitutionally obtainable at the
wife a crime through the enactment of the Revised Penal expense of religious liberty. A desirable end cannot be
Code.[23] The legislative power has also seen fit to enact the promoted by prohibited means.
Civil Service Law and has given said law general application.
The exemption from participation in flag ceremonies cannot
The argument that a marital relationship is the concern of be applied to the tolerance of adulterous relationships by court
religious authorities and not the State has no basis. personnel in the name of religious freedom.

In Reynolds v. United States,[24] the U.S. Supreme Court A clear and present danger of a substantive evil, destructive to
stated: public morals, is a ground for the reasonable regulation of the
It is impossible to believe that the constitutional guaranty of free exercise and enjoyment of religious profession.[29] In
religious freedom was intended to prohibit legislation in addition to the destruction of public morals, the substantive
respect to this most important feature of social life. Marriage, evil in this case is the tearing down of morality, good order,
while from its very nature a sacred obligation, is, nevertheless, and discipline in the judiciary.
in most civilized nations, a civil contract, and usually
regulated by law. Upon it society may be said to be built, and Jurisprudence on immoral conduct of employees in the civil
out of its fruits spring social relations and social obligations service has been consistent. There is nothing in this case that
and duties, with which government is necessarily required to warrants a departure from precedents. We must not sanction
deal. or encourage illicit or adulterous relations among government
The strengthening of marriage ties and the concomitant employees.
hostility to adulterous or illicit marital relations is a primary
governmental concern. It has nothing to do with the particular Soledad S. Escritor and Luciano D. Quilapio are devoted
religious affiliations of those affected by legislation in this members of Jehovah's Witness. Exemptions granted under our
field. Muslim Laws to legitimate followers of Islam do not apply to
them.[30] The Court has no legislative power to place
The relations, duties, obligations and consequences of Jehovah's Witness in the same legal category as Muslims.
marriage are important to the morals and civilization of a
people and to the peace and welfare of society.[25] Any In Bucatcat v. Bucatcat,[31] it was held that conduct such as
attempt to inject freedom of religion in an effort to exempt that demonstrated by the respondent is immoral and deserving
oneself from the Civil Service rules relating to the sanctity of of punishment. For such conduct, the respondent, another
the marriage tie must fail. court interpreter, was dismissed from the service. It was held:
Every employee of the judiciary should be an example of
The U.S. Supreme Court in the above-cited case of Reynolds integrity, uprightness and honesty. Like any public servant, he
v. United States[26] upheld federal legislation prohibiting must exhibit the highest sense of honesty and integrity not
bigamy and polygamy in territories of the United States, more only in the performance of his official duties but in his
specifically Utah. Members of the Mormon Church asserted personal and private dealings with other people, to preserve
that the duty to practice polygamy was an accepted doctrine of the court's good name and standing. It cannot be overstressed
their church. In fact, Mormons had trekked from the regular that the image of a court of justice is mirrored in the conduct,
States of the Union to what was then a mere Territory in order official and otherwise, of the personnel who work thereat,
to practice their religious beliefs, among them polygamy. The from the judge to the lowest of its personnel. Court employees
Court declared that while it protected religious belief and have been enjoined to adhere to the exacting standards of
opinion, it did not deprive Congress of the power to reach morality and decency in their professional and private conduct
actions violative of social duties or subversive of good order. in order to preserve the good name and integrity of courts of
Polygamy was outlawed even for Mormons who considered it justice.
a religious obligation. All those who work in the judiciary are bound by the most
exacting standards of ethics and morality to maintain the
We must not exempt illegal conduct or adulterous relations people's faith in the courts as dispensers of justice. In Liguid
from governmental regulation simply because their v. Camano,[32] it was ruled:
practitioners claim it is part of their free exercise of religious Surely, respondent's behavior of living openly and
profession and worship. scandalously for over two (2) decades with a woman not his
wife and siring a child by her is representative of the gross and
Indeed, the Court distinguishes between religious practices, serious misconduct penalized by the ultimate penalty of
including the seemingly bizarre, which may not be regulated, dismissal under Section 22 (c), Rule XIV of the Omnibus
Rules Implementing Book IV of Executive Order No. 292
otherwise known as the Revised Administrative Code of 1987. [1] Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994,
As defined, misconduct is a transgression of some established 235 SCRA 290.
or definite rule of action, more particularly, unlawful behavior
or gross negligence by the public officer. Respondent's [2] De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68
conduct is an example of the kind of gross and flaunting SCRA 354.
misconduct that so quickly and surely corrodes the respect for
the courts without which government cannot continue and that [3] Revised Administrative Code, Book V, Title I, Subtitle A,
tears apart the bonds of our polity. Section 46 (b) (5).
Earlier, in Navarro v. Navarro,[33] the penalty of suspension
was imposed on a court employee for maintaining illicit [4] Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13
relations with a woman not his wife, thus: (1946).
Time and again we have stressed adherence to the principle
that public office is a public trust. All government officials [5] Oxford Universal Dictionary, Vol. 2, p. 1280.
and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty and [6] Id., p. 961.
efficiency, act with patriotism and justice, and lead modest
lives. This constitutional mandate should always be in the [7] Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v.
minds of all public servants to guide them in their actions Villanueva, 116 Phil. 1208 (1962); Reyes v. Wong, A.M. No.
during their entire tenure in the government service. The good 547, 29 January 1975, 63 SCRA 668.
of the service and the degree of morality which every official
and employee in the public service must observe, if respect [8] Revised Penal Code, Art. 333.
and confidence are to be maintained by the Government in the
enforcement of the law, demand that no untoward conduct on [9] Revised Penal Code, Art. 334.
his part, affecting morality, integrity and efficiency while
holding office should be left without proper and [10] Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of
commensurate sanction, all attendant circumstances taken into Court, Rule 110, Section 5.
account.
The exacting standards of ethics and morality imposed upon [11] Reyes v. Wong, supra.
court judges and court employees are required to maintain the
people's faith in the courts as dispensers of justice, and whose [12] Supra.
image is mirrored by their actuations. As the Court eloquently
stated through Madame Justice Cecilia Muñoz-Palma: [13] Lacuata v. Bautista, supra.
[T]he image of the court of justice is necessarily mirrored in
the conduct, official or otherwise, of the men and woman who [14] Supra.
work thereat, from the judge to the least and lowest of its
personnel - hence, it becomes the imperative sacred duty of [15] 339 Phil. 510 (1997).
each and everyone in the court to maintain its good name and
standing as a true temple of justice.[34] [16] A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.
The high degree of moral uprightness that is demanded of
employees of the government entails many sacrifices that are [17] 220 Phil. 49 (1985).
peculiar to the civil service. By aspiring to these positions,
government employees are deemed to have submitted [18] E.O. 292, Sec. 46 (5).
themselves to greater scrutiny of their conduct, all in the
pursuit of a professional civil service. The Court has [19] Art. 334.
repeatedly applied these principles in analogous cases.[35]
[20] Rollo, Exhibits "1" and "2", pp. 14-15.
Immorality is punishable by suspension of six (6) months and
one day to one (1) year for the first offense and dismissal for [21] TSN, October 12, 2000, pp. 11-15.
the second offense.[36] Considering that respondent's
misconduct is in the nature of a continuing offense, it must be [22] Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV,
treated as a first offense, and her continued cohabitation with Sec. 15.
Luciano E. Quilapio, Jr. must be deemed a second offense,
which will warrant the penalty of dismissal. [23] Art. 334.

ACCORDINGLY, I vote that respondent Soledad S. Escritor is [24] 98 U.S. 145; 25 L.Ed. 244 (1879).
GUILTY of immorality and disgraceful conduct and should be
SUSPENDED for a period of Six (6) months and One day [25] Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.
without pay, with a warning that the continuance of her illicit
cohabitation with Luciano D. Quilapio, Jr. shall be deemed a [26] Supra.
second offense which shall warrant the penalty of dismissal.
[27] G.R. No. 95770, 1 March 1993, 219 SCRA 256.
ruled that although the denials of benefits were proper under
[28] 319 U.S. 624 (1943). Oregon law, Sherbert required the Oregon Supreme Court to
hold that the denials significantly burdened respondents'
[29] American Bible Society v. City of Manila, 101 Phil. 386 religious freedom in violation of the Free Exercise Clause.
(1957). The Oregon Supreme Court did not attach significance to the
fact that peyote possession is a felony in Oregon.
[30] Sulu Islamic Association of Masjid Lambayong v. Malik,
A.M. No. MTJ-92-691, 10 September 1993, 226 SCRA 193. The U.S. Supreme Court vacated the Oregon Supreme Court's
judgment and ordered the remand of the case for a definitive
[31] 380 Phil. 555 (2000). ruling on whether the religious use of peyote is legal in
Oregon. The U.S. Supreme Court deemed the legality or
[32] A.M. No. RTJ-99-1509, 8 August 2002. illegality of the questioned conduct critical in its analysis of
respondents' claim for protection under the Free Exercise
[33] A.M. No. OCA-00-61, 6 September 2000, 339 SCRA Clause.
709.
In Smith I, the U.S. Supreme Court distinguished respondents'
[34] Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-89- conduct with that involved in Sherbert, thus:
312, 9 January 1992, 205 SCRA 21 and Sy v. Cruz, 321 Phil. x x x In Sherbert, as in Thomas and Hobbie v. Unemployment
231 [1995]. Appeals Comm'n of Fla.,[4] the conduct that gave rise to the
termination of employment was perfectly legal; indeed, the
[35] Benavidez v. Vega, A.M. No. P-01-1530, 13 December Court assumed that it was immune from state regulation.[5]
2001; Alday v. Cruz, A.M. No. RTJ-00-1530, 14 March 2001, The results we reached in Sherbert, Thomas and Hobbie might
354 SCRA 322. well have been different if the employees had been discharged
for engaging in criminal conduct. x x x The protection that the
[36] Civil Service Rules, Rule XIV, Section 23 (o). First Amendment provides to "legitimate claims to the free
exercise of religion" does not extend to conduct that a State
has validly proscribed.[6] (Emphasis supplied)
DISSENTING OPINION In the second Employment Division v. Smith (Smith II),[7] the
Oregon Supreme Court held on remand that respondents'
CARPIO, J.: religiously inspired use of peyote fell within the prohibition of
the Oregon statute classifying peyote as a "controlled
I maintain my dissent from the majority opinion as it now substance" and punishing its possession as a felony. Although
orders the dismissal of the administrative complaint filed by the Oregon Supreme Court noted that the statute makes no
petitioner Alejandro Estrada against respondent Soledad S. exception for the sacramental use of peyote, it still concluded
Escritor. that the prohibition was not valid under the Free Exercise
Clause.
The majority opinion relies heavily on Sherbert v. Verner[1] in
upholding Escritor's claim of exemption from administrative The U.S. Supreme Court reversed the Oregon Supreme Court.
liability grounded on her religious belief as a member of the The U.S. Supreme Court ruled that a claim of exemption from
Jehovah's Witnesses. This religious sect allows Escritor's a generally applicable law grounded on the right of free
cohabitation with Luciano D. Quilapio, Jr., who has a exercise could not be evaluated under the compelling state
subsisting marriage with another woman. interest test of Sherbert, particularly where such law does not
violate other constitutional protections. The U.S. Supreme
The compelling state interest test espoused in Sherbert has Court expressly declared:
been abandoned more than 15 years ago by the U.S. Supreme x x x We have never held that an individual's religious beliefs
Court in the Employment Division v. Smith[2] cases. In the excuse him from compliance with an otherwise valid law
Smith cases, the U.S. Supreme Court set aside the balancing prohibiting conduct that the State is free to regulate. x x x[8]
test for religious minorities laid down in Sherbert. Instead, the
U.S. Supreme Court ruled categorically in the Smith cases that xxxx
the guarantee of religious liberty as embodied in the Free
Exercise Clause does not require the grant of exemptions from The only decisions in which we have held that the First
generally applicable laws to individuals whose religious Amendment bars application of a neutral, generally applicable
practice conflict with those laws. law to religiously motivated action have involved not the Free
Exercise Clause alone, but the Free Exercise Clause in
In the first Employment Division v. Smith (Smith I),[3] conjunction with other constitutional protections, such as
petitioner denied respondents' application for unemployment freedom of speech and of the press. x x x[9]
compensation benefits under an Oregon statute declaring
ineligible for benefits employees discharged for work-related Respondents argue that even though exemption from generally
misconduct. The misconduct for which respondents were applicable criminal laws need not automatically be extended to
discharged from their jobs consisted of their ingesting peyote, religiously motivated conduct, at least the claim for a religious
a hallucinogenic drug, for sacramental purposes at a ceremony exemption must be evaluated under the balancing test set forth
of their Native American Church. The Oregon Supreme Court in Sherbert v. Verner. x x x In recent years we have abstained
from applying the Sherbert test (outside the unemployment religious beliefs do not excuse any person from liability for
compensation field) at all. x x x[10] violation of a valid criminal law of general application. The
majority opinion simply refuses to face and accept this reality.
Even if we were inclined to breathe into Sherbert some life
beyond the unemployment compensation field, we would not The present case involves conduct that violates Article 334 of
apply it to require exemptions from a generally applicable the Revised Penal Code, a provision of law that no one
criminal law. x x x[11] (Emphasis supplied) challenges as unconstitutional. Clearly, the theories invoked in
What the Smith cases teach us is that the compelling state the majority opinion have no application to the present case
interest test in Sherbert is not the correct test in determining based on an unbroken line of U.S. Supreme Court decisions.
the legitimacy of a claim of exemption from generally In any event, we shall discuss for academic purposes the
applicable, religion-neutral laws that have the incidental effect merits of the theories advanced in the majority opinion.
of burdening particular religious practice. Any such claim for
exemption should be analyzed by considering whether the While the majority opinion only mentions separation and
conduct in question is one that "the State has validly benevolent neutrality, a close reading of the major U.S.
proscribed," irrespective of the sincerity or centrality of an Supreme Court opinions specifically relating to the religion
individual's religious beliefs. clauses presents three principal theories at play, namely, (a) the
strict separation or "no aid" theory, (b) the governmental
Here, Escritor is indisputably engaged in criminal conduct. neutrality theory, and (c) the accommodation or benevolent
Escritor's continued cohabitation with Quilapio is patently in neutrality theory.[16]
violation of Article 334 of the Revised Penal Code on
concubinage. Article 334 makes no exception for religiously The strict separation or "no aid" theory holds that the
sanctioned cohabitation such as that existing between Escritor establishment clause viewed in conjunction with the free
and Quilapio. The majority opinion in fact concedes that the exercise clause requires a strict separation of church and state
present case involves a claim of exemption "from a law of and that government can do nothing which involves
general applicability that inadvertently burdens religious governmental support of religion or which is favorable to the
exercise."[12] The majority opinion even concedes further that cultivation of religious interests.[17] This theory found its first
the conduct in question is one "which Philippine law and expression in the case of Everson v. Board of Education,[18]
jurisprudence consider both immoral and illegal."[13] And yet, which espoused the "no aid" principle. Thus, the government
the majority opinion expediently brushes aside the illegality of cannot by its programs, policies, or laws do anything to aid or
Escritor's questioned conduct using the obsolete compelling support religion or religious activities.[19]
state interest test in Sherbert.
Everson upheld the validity of a New Jersey statute
The majority opinion mentions two "opposing strains of authorizing bus fare reimbursement to parents of parochial, as
jurisprudence on the religion clauses" in U.S. history, namely, well as public school children. Apparently, the strict
separation or strict neutrality and benevolent neutrality or interpretation or "no aid" theory prohibits state benefits to a
accommodation. The majority opinion asserts that the framers particular sect or sects only, but does not prohibit benefits that
of our 1935, 1973, and 1987 Constitutions intended to adopt a accrue to all, including one or more sects. Everson did not
benevolent neutrality approach in interpreting the religion involve religiously motivated conduct that constituted a
clauses, i.e., the Establishment and Free Exercise Clauses. The violation of a criminal statute.
majority opinion then reasons that in determining claims of
exemption based on freedom of religion, this Court must adopt Under the governmental neutrality theory, the establishment
the compelling state interest test laid down by the U.S. clause requires government to be neutral on religious matters.
Supreme Court in Sherbert, which according to the majority, [20] This theory was articulated by Mr. Justice Clark in the
best exemplifies the benevolent neutrality approach. Hence, case of Abington School District v. Schempp,[21] where he
even as the majority opinion acknowledges that the U.S. stated that what the Constitution requires is "wholesome
Supreme Court in the Smith cases has abandoned the neutrality," i.e., laws and governmental programs must be
compelling state interest test espoused in Sherbert, the directed to secular ends and must have a primary effect that
majority opinion dismisses this abandonment in its analysis of neither advances nor inhibits religion.[22] This test as stated
Escritor's free exercise exemption claim by simply labeling the by Mr. Justice Clark embodies a theory of strict neutrality[23]
Smith cases as exemplifying the strict neutrality approach. - thus, the government may not use the religious factor as a
basis for classification with the purpose of advancing or
The majority opinion blatantly ignores that whatever theory inhibiting religion:
may be current in the United States - whether strict neutrality, The place of religion in our society is an exalted one, achieved
benevolent neutrality or some other theory - the undeniable through a long tradition of reliance on the home, the church
fact is what is clearly stated in Smith II: and the inviolable citadel of the individual heart and mind. We
x x x We have never held that an individual's religious beliefs have come to recognize through bitter experience that it is not
excuse him from compliance with an otherwise valid law within the power of government to invade that citadel, whether
prohibiting conduct that the State is free to regulate. x x x[14] its purpose or effect be to aid or oppose, to advance or retard.
Thus, from the 1879 case of Reynolds v. U.S.[15] on the In the relationship between man and religion, the state is
practice of polygamy by Mormons to the 1988 and 1990 Smith firmly committed to a position of neutrality.[24] (Italics
cases on the use of prohibited drugs by native American supplied)
Indians, the U.S. Supreme Court has consistently held that
However, the concept of governmental neutrality can be we will not tolerate either governmentally established religion
interpreted in various ways - to some, anything but total or governmental interference with religion. Short of those
neutrality is anathema; to others, "neutrality can only mean expressly proscribed governmental acts there is room for play
that government policy must place religion at neither a special in the joints productive of a benevolent neutrality which will
advantage nor a special disadvantage."[25] permit religious exercise to exist without sponsorship and
without interference.[30] (Emphasis and italics supplied)
Schempp struck down a Pennsylvania law allowing the At issue in Walz was a provision in New York's Constitution
recitation of the Lord's Prayer and the reading of the Bible authorizing property tax exemptions to religious organizations
without comment in public schools, although the recitation for religious properties used solely for religious worship. Walz
and reading were voluntary and did not favor any sect. did not involve religiously motivated conduct that constituted
Schempp did not involve religiously motivated conduct that a violation of a criminal statute.
constituted a violation of a criminal statute.
The majority opinion cited the case of Walz in support of its
The accommodation theory provides that any limitation assertion that the framers of the 1935 Constitution intended to
derived from the establishment clause on cannot be rigidly adopt the benevolent neutrality approach in the interpretation
applied so as to preclude all aid to religion and that in some of the religion clauses, viz.:
situations government must, and in other situations may, x x x With the inclusion of the church property tax exemption
accommodate its policies and laws in the furtherance of in the body of the 1935 Constitution and not merely as an
religious freedom.[26]The accommodation theory found its ordinance appended to the Constitution, the benevolent
first expression in Zorach v. Clauson.[27] The U.S. Supreme neutrality referred to in the Walz case was given constitutional
Court held in Zorach that a state could authorize an imprimatur under the regime of the 1935 Constitution. x x x
arrangement whereby public school children could be released The U.S. Supreme Court decided Walz only in 1970, more
one hour a week for religious instruction off the school than three decades after the adoption of our 1935 Constitution.
premises. Zorach did not involve religiously motivated It is certainly doubtful whether the framers of our 1935
conduct that constituted a violation of a criminal statute. Constitution intended to give "constitutional imprimatur" to a
theory of interpretation espoused in a case that was yet to be
In his book Religion and the Constitution published in 1964, formulated. Moreover, when the U.S. Supreme Court upheld
Professor Paul G. Kauper used the term "benevolent the constitutionality of church property tax exemption on the
neutrality" in the following context: basis of "benevolent neutrality," it did so on grounds that no
It would be a mistake, however, to suggest that the theory of particular religion is singled out for favorable treatment, and
accommodation x x x is unrelated to other ideas and theories partly on historical grounds that church tax exemptions have
that have been developed, notably the no-aid and neutrality been accepted without challenge in all states for most of the
concepts. Rather, accommodation, instead of being viewed as nation's history.[31]
a wholly independent theory of interpretation, should be seen
as a modification of the no-aid or neutrality concepts. x x x The majority opinion vigorously argues the merits of adopting
the theory of accommodation in the interpretation of our
These ideas cannot be pressed to their absolute limit. Not only Constitution's religion clauses. However, the majority opinion
must the no-aid or neutrality concept be subordinated to the fails to mention that a distinction is often drawn by courts and
necessities of free exercise, but an area of legislative discretion commentators between mandatory accommodation and
must be allowed where a state may choose to advance the permissive accommodation. Mandatory accommodation is
cause of religious freedom even at the expense of not being exemplified by the key idea in Sherbert that exemptions from
completely neutral. Indeed, this may be described as the larger generally applicable laws are required by force of the Free
or benevolent neutrality.[28](Emphasis and italics supplied) Exercise Clause,[32] which the majority opinion adheres to in
Six years later, the U.S. Supreme Court used the term granting Escritor's claim of free exercise exemption.
"benevolent neutrality" for the first time in Walz v. Tax
Commission.[29] In Walz, the U.S. Supreme Court sustained Permissive accommodation refers to exercises of political
the constitutionality of tax exemption of property used discretion that benefit religion, and that the Constitution
exclusively for religious purposes on the basis of "benevolent neither requires nor forbids.[33] The U.S. Supreme Court
neutrality," as follows: recognized in Smith II that although the Free Exercise Clause
The Court has struggled to find a neutral course between the did not require permissive accommodation, the political
two Religion Clauses, both of which are cast in absolute terms, branches could shield religious exercise through legislative
and either of which, if expanded to a logical extreme, would accommodation,[34] for example, by making an exception to
tend to clash with the other. x x x proscriptive drug laws for sacramental peyote use.

xxxx Professor Michael W. McConnell, whose views on the


accommodation theory were frequently quoted by the majority
The course of constitutional neutrality in this area cannot be an opinion, defends mandatory accommodation.[35] However,
absolutely straight line; rigidity could well defeat the basic Prof. Kauper, likewise an accommodationist, favors
purpose of these provisions, which is to insure that no religion permissive accommodation, stating that "as a general
be sponsored or favored, none commanded, and none proposition, no person should be allowed to claim that because
inhibited. The general principle deducible from the First of his religion he is entitled as a matter of constitutional right
Amendment and all that has been said by the Court is this: that to claim an exemption from general regulatory and tax
laws."[36] Prof. Kauper further explains his position that Court has repeatedly held that "the image of a court of justice
religious liberty furnishes no ground for claiming immunity to is necessarily mirrored in the conduct, official or otherwise, of
laws which place reasonable restrictions on overt conduct in the men and women who work thereat."[42] While arguably
the furtherance of public interests protected by the state's not constituting "disgraceful and immoral conduct,"[43]
police power,[37] as follows: Escritor's cohabitation with Quilapio is a patent violation of
Where the issue is not the use of governmental power to our penal law on concubinage that vitiates "the integrity of
sanction religious belief and practices by some positive court personnel and the court itself."[44] The public's faith and
program but the granting of exemption on religious grounds confidence in the administration of justice would certainly be
from laws of general operation, what determines whether the eroded and undermined if tolerated within the judiciary's ranks
government is required, or permitted, to make the are court employees blatantly violating our criminal laws.
accommodation? While a state may appropriately grant
exemptions from its general police and tax laws, it should not I therefore maintain that Escritor's admitted cohabitation with
be constitutionally required to do so unless this immunity can Quilapio is sufficient basis to hold her guilty of conduct
properly be claimed as part of the constitutional guarantee of prejudicial to the best interest of the service and to impose
religious liberty. Thus, exemptions from property tax and upon her the appropriate penalty.
military service, health and labor laws should be at the
discretion of government. Whether Sherbert carried the Equally compelling is the State's interest in the preservation of
principle of required accommodation too far is debatable. It marriage and the family as basic social institutions,[45] which
may well be that the court here undertook a determination of is ultimately the public policy underlying Articles 334 and 349
questions better left to the legislature and that in this area, x x of the Revised Penal Code. This Court has recognized in
x the policy of granting exemptions on religious grounds countless cases that marriage and the family are basic social
should be left to legislative discretion.[38] (Emphasis institutions in which the State is vitally interested[46] and in
supplied) the protection of which the State has the strongest interest.[47]
It is true that a test needs to be applied by the Court in In Domingo v. Court of Appeals,[48] the Court stressed that:
determining the validity of a free exercise claim of exemption Marriage, a sacrosanct institution, declared by the Constitution
as made here by Escritor. The compelling state interest test in as an "inviolable social institution, is the foundation of the
Sherbert pushes the limits of religious liberty too far, and so family;" as such, it "shall be protected by the State." x x x So
too does the majority opinion insofar as it grants Escritor crucial are marriage and the family to the stability and peace
immunity to a law of general operation on the ground of of the nation that their "nature, consequences, and incidents
religious liberty. Making a distinction between permissive are governed by law and not subject to stipulation.
accommodation and mandatory accommodation is more The same sentiment has been expressed in Article 149 of the
critically important in analyzing free exercise exemption Family Code:
claims. Such limitations forces the Court to confront how far it The family, being the foundation of the nation, is a basic social
can validly set the limits of religious liberty under the Free institution which public policy cherishes and protects.
Exercise Clause, rather than presenting the separation theory Consequently, family relations are governed by law and no
and accommodation theory as opposite concepts, and then custom, practice or agreement destructive of the family shall
rejecting relevant and instructive American jurisprudence be recognized or given effect. (Emphasis supplied)
(such as the Smith cases) just because it does not espouse the And yet, notwithstanding the foregoing compelling state
theory selected. interests at stake, the majority all too willingly and easily
places them in jeopardy by upholding Escritor's claim of
Theories are only guideposts and "there is no magic formula to exemption. On this point, Professor William P. Marshall aptly
settle all disputes between religion and the law, no legal pill to observes that one of the problems involved in free exercise
ease the pain of perceived injustice and religious oppression, exemption analysis is that it requires the Court to weigh the
and certainly no perfect theory to bind judges or state interest against the interest of the narrower class
legislators."[39] The Smith cases, particularly Smith II, cannot comprised only of those seeking exemption. On the other
be so easily dismissed by the majority opinion and labeled as hand, in other doctrinal areas, the Court balances the state
"best exemplifying the strict neutrality approach." The Smith interest in the regulation at issue against the interests of the
Court affirmed the power and the discretion of legislatures to regulated class taken as a whole. Prof. Marshall persuasively
enact statutory protection beyond what the Free Exercise argues that this leads to both unpredictability in the exemption
Clause required. The U.S. Supreme Court indicated in Smith II balancing process and potential inconsistency in result "as
that legislatures could enact accommodations to protect each regulation may be subject to limitless challenges based
religion beyond the Free Exercise Clause minimum without upon the peculiar identity of the challenger."[49] Moreover,
"establishing" religion and thereby running afoul of the Prof. Marshall notes that the exemption balancing process
Establishment Clause.[40] What the Smith cases espouse, necessarily leads to underestimating the strength of the
therefore, is not really the strict neutrality approach, but more countervailing state interest.[50] Indeed, the state interest in a
of permissive accommodation.[41] challenged regulation will seldom be seriously threatened if
only a few persons seek exemption from it.[51]
Even assuming that the theory of benevolent neutrality and the
compelling state interest test are applicable, the State has a In dismissing the administrative complaint against Escritor, the
compelling interest in exacting from everyone connected with majority opinion effectively condones and accords a
the dispensation of justice, from the highest magistrate to the semblance of legitimacy to her patently unlawful cohabitation
lowest of its personnel, the highest standard of conduct. This with Quilapio, while in the eyes of the law, Quilapio remains
married to his legal wife. This condonation in fact facilitates religious denomination, as in the case of Sherbert. This case is
the circumvention by Escritor and Quilapio of Articles 334 about a religious cover for an obviously criminal act.
and 349 of the Revised Penal Code on concubinage and
bigamy.[52] Without having his first marriage legally In Sherbert, the conduct in question was the refusal of a
dissolved, Quilapio can now continue to cohabit with Escritor member of the Seventh Day Adventist Church to work on the
with impunity. How do we reconcile this scenario with the Sabbath Day or on Saturdays, which prevented prospective
Constitution's emphatic declaration that marriage is "an employers from giving petitioner in Sherbert employment.
inviolable social institution"?[53] Petitioner in Sherbert then claimed unemployment benefits,
which the State denied because the law withheld benefits to
By choosing to turn a blind eye to Escritor's criminal conduct, those who failed without good cause to accept available
the majority is in fact recognizing and according judicial suitable work. In Sherbert, the questioned conduct - the refusal
imprimatur to a practice, custom or agreement that subverts to work on Saturdays - was part of the religious tenets of the
marriage, albeit one that is sanctioned by a particular religious Seventh Day Adventists. The questioned conduct in Sherbert
sect. The majority's opinion here bestows "a credibility and was not a criminal conduct, unlike the questioned conduct of
legitimacy upon the religious belief in question simply by its Escritor in this case. Clearly, even assuming for the sake of
being judicially recognized as constitutionally sacrosanct."[54] argument that Sherbert remains good law in the United States
This is another problem that arises in free exercise exemption and thus has some persuasive force here, still Sherbert is
analysis - the benevolent neutrality approach fails to take into patently inapplicable to the present case.
account the role that equality plays in free exercise theory.[55]
While the text of the Free Exercise Clause is consistent with The positive law and the institutions of government are
protecting religion from discrimination, it does not compel concerned not with correct belief but with overt conduct
discrimination in favor of religion.[56] However, the related to good order, peace, justice, freedom, and community
benevolent neutrality approach promotes its own form of welfare.[58] Hence, while there are times when government
inequality when under it, exemptions are granted only to must adapt to, or acquiesce to meet the needs of religious
religious claimants like Escritor, whose religiously-sanctioned exercise, there are also times when the exercises a religion
but otherwise illegal conjugal arrangement with Quilapio wishes to pursue must be adapted or even prohibited in order
acquires a veneer of "special judicial reinforcement."[57] to meet the needs of public policy.[59] For indeed, even
religious liberty has its limits. And certainly, "there is a price
Catholics may secure a church annulment of their marriage. A to be paid, even by religion, for living in a constitutional
church annulment does not exempt Catholics from criminal or democracy."[60]
administrative liability if they cohabit with someone other than
their legal spouse before their marriage is finally annulled by a Certainly, observance of provisions of the Revised Penal
civil court. Catholics cannot legally justify before civil courts Code, whose validity or constitutionality are not even
such act of concubinage on the ground that the act conforms to challenged, is a price that all religions in the Philippines must
their religious beliefs because they have a secured a church willingly pay for the sake of good order and peace in the
annulment which freed them from their marital vows. If this community. To hold otherwise would, as aptly stated in
Court condones Escritor's act of concubinage on religious Reynolds v. U.S.,[61] "make the professed doctrines of
grounds, then it will have to condone acts of concubinage by religious belief superior to the law of the land," and in effect
Catholics who have secured church annulment of their "permit every citizen to become a law unto himself." The
marriage even without a final annulment from a civil court. majority opinion will make every religion a separate republic,
The majority pushes their opinion on a slippery slope. making religion a haven for criminal conduct that otherwise
would be punishable under the laws of the land. Today
It may well be asked how, under a well-meaning but overly concubinage, tomorrow bigamy, will enjoy protection from
solicitous grant of exemption based on the Freedom of criminal sanction under the new doctrine foisted by the
Exercise Clause of our Constitution, an individual can be majority opinion.
given the private right to ignore a generally applicable,
religion-neutral law. For this is what the majority opinion has Accordingly, I vote to suspend respondent Soledad S. Escritor
effectually granted Escritor in dismissing the administrative for six months and one day without pay for conduct prejudicial
complaint against her. The accommodation of Escritor's to the best interest of the service. However, the suspension
religious beliefs under the benevolent neutrality approach is shall be lifted immediately upon Escritor's manifestation to
too high a price to pay when weighed against its prejudicial this Court that she has ceased cohabiting with Luciano D.
effect on the sound administration of justice and the protection Quilapio, Jr. Moreover, respondent Escritor is warned that her
of marriage and the family as basic social institutions. continued cohabitation with Quilapio, during or after her
suspension and while Quilapio's marriage with his legal wife
Finally, there is even no claim here that concubinage is central still subsists, shall merit the penalty of dismissal from the
to the religious belief of the Jehovah's Witnesses, or even a service.
part of the religious belief of the Jehovah's Witnesses. Escritor
merely claims that her live-in arrangement with a married man
is, in the words of the majority opinion, "in conformity with [1] 374 U.S. 398 (1963).
her and her partner's religious belief." This case is not an issue
of a statute colliding with centrally or vitally held beliefs of a [2] 485 U.S. 660 (1988) and 494 U.S. 872 (1990).
[3] 485 U.S. 660 (1988).
[31] ABRAHAM, H. AND PERRY, B., op. cit., at Table 6.3.
[4] Citations omitted.
[32] Ira C. Lupu, The Trouble with Accommodation, 60(3)
[5] In Sherbert, the appellant was discharged because she GEO. WASH. L. REV. 743, 751 (1992).
would not work on Saturday, the Sabbath Day of her faith.
[33] Id.
[6] Employment Division v. Smith, supra note 3 at 670-671.
[34] Anne Y. Chiu, When Prisoners Are Weary and Their
[7] 494 U.S. 872 (1990). Religious Exercise Burdened, RLUIPA Provides Some Rest
for their Souls, 79 WASH. L. REV. 999 (2004). In this article,
[8] Id. at 878-879. Chiu defines "legislative accommodation" as a statute enacted
by the legislature to lift a neutral, generally applicable burden
[9] Id. at 881. on religion imposed by the government.

[10] Id. at 882-883. [35] Michael W. McConnell, Accommodation of Religion: An


Update and a Response to the Critics, 60(3) GEO. WASH. L.
[11] Id at 884. REV. 685, 687-688 (1992).

[12] Estrada v. Escritor, 455 Phil. 574 (2003). [36] KAUPER, op. cit., at 17.

[13] Id. at 593. [37] Id. at 38.

[14] Employment Division v. Smith, supra note 7 at 878-879. [38] Id. at 78-79.

[15] 98 U.S. 145 (1878). [39] WEBER, P., EQUAL SEPARATION:


UNDERSTANDING THE RELIGION CLAUSES OF THE
[16] KAUPER, P., RELIGION AND THE CONSTITUTION FIRST AMENDMENT 154 (1990).
59 (1964). See also ABRAHAM, H. AND PERRY, B.,
FREEDOM AND THE COURT: CIVIL RIGHTS AND [40] Anne Y. Chiu, op. cit.
LIBERTIES IN THE UNITED STATES 270 (7th ed., 1998).
[41] Ira C. Lupu, op. cit., at 751, note 33.
[17] Id.
[42] Villaraza v. Atienza, 195 Phil. 383, 390 (1981).
[18] 330 U.S. 1 (1947).
[43] See Dissenting Opinion, J. Carpio in Escritor v. Estrada,
[19] KAUPER, op. cit., at 61. op. cit., see note 12.

[20] ABRAHAM, H. AND PERRY, B., FREEDOM AND [44] Ganaden v. Bolasco, 64 SCRA 50, 53 (1975).
THE COURT: CIVIL RIGHTS AND LIBERTIES IN THE
UNITED STATES 272-73 (7th ed., 1998). [45] Section 2, Article XV and Section 12, Article II, 1987
Constitution.
[21] 374 U.S. 203 (1963).
[46] Goitia v. Campos-Rueda, 35 Phil. 252 (1919); Brown v.
[22] KAUPER, op. cit., at 64. Yambao, 102 Phil. 168, 172 (1957).

[23] Id. at 65. [47] Arroyo, Jr. v. Court of Appeals, G.R. Nos. 96602 and
96715, 203 SCRA 750,761 (1991).
[24] Abington School District v. Schempp, supra note 15 at
226. [48] G.R. No. 104818, 226 SCRA 572, 584 (1993).

[25] ABRAHAM, H. AND PERRY, B., op. cit., at 280. [49] William P. Marshall, In Defense of Smith and Free
Exercise Revisionism, 58 U. CHI. L. REV. 308, 311-312
[26] KAUPER, op. cit., at 59. (1991).

[27] 343 U.S. 306 (1952). [50] Id.

[28] Id. at 75. [51] Id.

[29] 397 U.S. 664 (1970). [52] Bigamy is an illegal marriage by contracting a second or
subsequent marriage before the first marriage has been legally
[30] Id. at 668-669. dissolved. It is interesting to note that, while Escritor and
Quilapio both executed a "Declaration of Pledging represented by her parents MR. & MRS. RENE LAUDE;
Faithfulness," such execution was unaccompanied by any LEOREMINDA MONARES, represented by her parents,
religious ceremony officiated by a presiding minister of the MR. & MRS. FLORENCIO MONARES; MERCY
Jehovah's Witnesses. Precisely, such ceremony would have MONTECILLO, represented by her parents MR. & MRS.
constituted a violation of Article 352 of the Revised Penal MANUEL MONTECILLO; ROBERTO TANGAHA,
Code prohibiting the performance of an illegal marriage represented by his parent ILUMINADA TANGAHA;
ceremony by priests or ministers of any religious EVELYN, MARIA & FLORA TANGAHA, represented by
denomination or sect. their parents MR. & MRS. ALBERTO TANGAHA;
MAXIMO EBRALINAG, represented by his parents, MR.
[53] Section 2, Article XV, 1987 Constitution. & MRS. PAQUITO EBRALINAG; JUTA CUMON,
GIDEON CUMON & JONATHAN CUMON, represented
[54] William P. Marshall, op. cit., at 322-23. by their father RAFAEL CUMON; EVIE LUMAKANG &
JUNAR LUMAKANG, represented by their parents MR.
[55] Id. at 319. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR
SARSOZO & IGNA MARIE SARSOZO, represented by
[56] Id. at 325. their parents MR. & MRS. VIRGILIO SARSOZO;
MICHAEL JOSEPH & HENRY JOSEPH, represented by
[57] Id. parent ANNIE JOSEPH; EMERSON TABLASON &
MASTERLOU TABLASON, represented by their parent
[58] KAUPER, op. cit., at 83. EMERLITO TABLASON, petitioners,
vs.
[59] WEBER, P., op. cit., at 150. THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, respondent.
[60] Id. at 47.
G.R. No. 95887 March 1, 1993
[61] 98 U.S. 145, 167 (1878).
Republic of the Philippines MAY AMOLO, represented by her parents MR. & MRS.
SUPREME COURT ISAIAS AMOLO; REDFORD ALSADO, JOEBERT
Manila ALSADO & RUDYARD ALSADO, represented by their
parents MR. & MRS. ABELARDO ALSADO; NELIA
EN BANC ALSADO, REU ALSADO & LILIBETH ALSADO,
represented by their parents MR. & MRS. ROLANDO
ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES & OPHELIA NAPOLES;
G.R. No. 95770 March 1, 1993 JESICA CARMELOTES, represented by her parents MR.
& MRS. SERGIO CARMELOTES; BABY JEAN
ROEL EBRALINAG, EMILY EBRALINAG, represented MACAPAS, represented by her parents MR. & MRS.
by their parents MR. & MRS. LEONARDO TORIBIO MACAPAS; GERALDINE ALSADO,
EBRALINAG, JUSTINIANA TANTOG, represented by represented by her parents MR. & MRS. JOEL ALSADO;
her father AMOS TANTOG; JEMILOYAO & JOEL RAQUEL DEMOTOR & LEAH DEMOTOR, represented
OYAO, represented by their parents MR. & MRS. by their parents MR. & MRS. LEONARDO DEMOTOR;
ELIEZER OYAO; JANETH DIAMOS & JEREMIAS JURELL VILLA & MELONEY VILLA, represented by
DIAMOS, represented by parents MR. & MRS. their parents MR. & MRS. JOVENIANO VILLA;
GODOFREDO DIAMOS; SARA OSTIA & JONATHAN JONELL HOPE MAHINAY, MARY GRACE MAHINAY
OSTIA, represented by their parents MR. & MRS. and MAGDALENE MAHINAY, represented by their
FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, parents MR. & MRS. FELIX MAHINAY; JONALYN
represented by their parents MR. & MRS. LYDIO ANTIOLA and JERWIN ANTIOLA, represented by their
SEQUINO; NAPTHALE TANACAO, represented by his parents FELIFE ANTIOLA and ANECITA ANTIOLA;
parents MR. & MRS. MANUEL TANACAO; PRECILA MARIA CONCEPCION CABUYAO, represented by her
PINO, represented by her parents MR. & MRS. FELIPE parents WENIFREDO CABUYAO and ESTRELLITA
PINO; MARICRIS ALFAR, RUWINA ALFAR, CABUYAO, NOEMI TURNO represented by her parents
represented by their parents MR. & MRS. MANUEL TURNO and VEVENCIA TURNO;
HERMINIGILDO ALFAR; FREDESMINDA ALFAR & SOLOMON PALATULON, SALMERO PALATULON
GUMERSINDO ALFAR, represented by their parents and ROSALINDA PALATULON, represented by their
ABDON ALFAR; ALBERTO ALFAR & ARISTIO parents MARTILLANO PALATULON and CARMILA
ALFAR, represented by their parents MR. & MRS. PALATULON, petitioners,
GENEROSO ALFAR; MARTINO VILLAR, represented vs.
by his parents MR. & MRS. GENARO VILLAR; THE DIVISION SUPERINTENDENT OF SCHOOLS OF
PERGEBRIEL GUINITA & CHAREN GUINITA, CEBU and ANTONIO A. SANGUTAN, respondents.
represented by their parents MR. & MRS. CESAR
GUINITA; ALVIN DOOP, represented by his parents MR. Felino M. Ganal for petitioners.
& MRS. LEONIDES DOOP; RHILYN LAUDE,
The Solicitor General for respondents.
The implementing rules and regulations in Department Order
No. 8 provide:
GRIÑO-AQUINO, J.:
RULES AND REGULATIONS FOR CONDUCTING THE
These two special civil actions for certiorari, Mandamus and FLAG CEREMONY IN ALL EDUCATIONAL
Prohibition were consolidated because they raise essentially INSTITUTIONS.
the same issue: whether school children who are members or a
religious sect known as Jehovah's Witnesses may be expelled 1. The Filipino Flag shall be displayed by all
from school (both public and private), for refusing, on account educational institutions, public and private, every school day
of their religious beliefs, to take part in the flag ceremony throughout the year. It shall be raised at sunrise and lowered at
which includes playing (by a band) or singing the Philippine sunset. The flag-staff must be straight, slightly and gently
national anthem, saluting the Philippine flag and reciting the tapering at the end, and of such height as would give the Flag
patriotic pledge. a commanding position in front of the building or within the
compound.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division
Superintendent of Schools of Cebu and Manuel F. Biongcog, 2. Every public and private educational institution shall
Cebu District Supervisor," the petitioners are 43 high school hold a flag-raising ceremony every morning except when it is
and elementary school students in the towns of Daan raining, in which event the ceremony may be conducted
Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. indoors in the best way possible. A retreat shall be held in the
All minors, they are assisted by their parents who belong to afternoon of the same day. The flag-raising ceremony in the
the religious group known as Jehovah's Witnesses which morning shall be conducted in the following manner:
claims some 100,000 "baptized publishers" in the Philippines.
a. Pupils and teachers or students and faculty members
In G.R. No. 95887, "May Amolo, et al. vs. Division who are in school and its premises shall assemble in formation
Superintendent of Schools of Cebu and Antonio A. Sangutan," facing the flag. At command, books shall be put away or held
the petitioners are 25 high school and grade school students in the left hand and everybody shall come to attention. Those
enrolled in public schools in Asturias, Cebu, whose parents are with hats shall uncover. No one shall enter or leave the school
Jehovah's Witnesses. Both petitions were prepared by the same grounds during the ceremony.
counsel, Attorney Felino M. Ganal.
b. The assembly shall sing the Philippine National
All the petitioners in these two cases were expelled from their Anthem accompanied by the school band or without the
classes by the public school authorities in Cebu for refusing to accompaniment if it has none; or the anthem may be played by
salute the flag, sing the national anthem and recite the patriotic the school band alone. At the first note of the Anthem, the flag
pledge as required by Republic Act No. 1265 of July 11, 1955, shall be raised briskly. While the flag is being raised, all
and by Department Order No. 8 dated July 21, 1955 of the persons present shall stand at attention and execute a salute.
Department of Education, Culture and Sports (DECS) making Boys and men with hats shall salute by placing the hat over the
the flag ceremony compulsory in all educational institutions. heart. Those without hat may stand with their arms and hands
Republic Act No. 1265 provides: down and straight at the sides. Those in military or Boy Scout
uniform shall give the salute prescribed by their regulations.
Sec. 1. All educational institutions shall henceforth observe The salute shall be started as the Flag rises, and completed
daily flag ceremony, which shall be simple and dignified and upon last note of the anthem.
shall include the playing or singing of the Philippine National
anthem. c. Immediately following the singing of the Anthem, the
assembly shall recite in unison the following patriotic pledge
Sec. 2. The Secretary of Education is hereby authorized and (English or vernacular version), which may bring the
directed to issue or cause to be issued rules and regulations for ceremony to a close. This is required of all public schools and
the proper conduct of the flag ceremony herein provided. of private schools which are intended for Filipino students or
whose population is predominantly Filipino.
Sec. 3. Failure or refusal to observe the flag ceremony
provided by this Act and in accordance with rules and English Version
regulations issued by the Secretary of Education, after proper
notice and hearing, shall subject the educational institution I love the Philippines.
concerned and its head to public censure as an administrative It is the land of my birth;
punishment which shall be published at least once in a It is the home of my people.
newspaper of general circulation. It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
In case of failure to observe for the second time the flag- I will obey the rules of my school;
ceremony provided by this Act, the Secretary of Education, I will perform the duties of a patriotic, law-abiding citizen;
after proper notice and hearing, shall cause the cancellation of I will serve my country unselfishly and faithfully;
the recognition or permit of the private educational institution I will be a true, Filipino in thought, in word, in deed.
responsible for such failure.
xxx xxx xxx
Gerona was reiterated in Balbuna, as follows:
Jehovah's Witnesses admittedly teach their children not to
salute the flag, sing the national anthem, and recite the The Secretary of Education was duly authorized by the
patriotic pledge for they believe that those are "acts of Legislature thru Republic Act 1265 to promulgate said
worship" or "religious devotion" (p. 10, Rollo) which they Department Order, and its provisions requiring the observance
"cannot conscientiously give . . . to anyone or anything except of the flag salute, not being a religious ceremony but an act
God" (p. 8, Rollo). They feel bound by the Bible's command and profession of love and allegiance and pledge of loyalty to
to "guard ourselves from the fatherland which the flag stands for, does not violate the
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as constitutional provision on freedom of religion. (Balbuna, et
an image or idol representing the State (p. 10, Rollo). They al. vs. Secretary of Education, et al., 110 Phil. 150).
think the action of the local authorities in compelling the flag
salute and pledge transcends constitutional limitations on the Republic Act No. 1265 and the ruling in Gerona have been
State's power and invades the sphere of the intellect and spirit incorporated in Section 28, Title VI, Chapter 9 of the
which the Constitution protect against official control (p. 10, Administrative Code of 1987 (Executive Order No. 292)
Rollo). which took effect on September 21, 1988 (one year after its
publication in the Official Gazette, Vol. 63, No. 38 of
This is not the first time that the question, of whether the September 21, 1987). Paragraph 5 of Section 28 gives
children of Jehovah's Witnesses may be expelled from school legislative cachet to the ruling in Gerona, thus:
for disobedience of R.A. No. 1265 and Department Order No.
8, series of 1955, has been raised before this Court. 5. Any teacher or student or pupil who refuses to join or
participate in the flag ceremony may be dismissed after due
The same issue was raised in 1959 in Gerona, et al. vs. investigation.
Secretary of Education, et al., 106 Phil. 2 (1959) and Balbuna,
et al. vs. Secretary of Education, 110 Phil. 150 (1960). This However, the petitioners herein have not raised in issue the
Court in the Gerona case upheld the expulsion of the students, constitutionality of the above provision of the new
thus: Administrative Code of 1987. They have targeted only
Republic Act No. 1265 and the implementing orders of the
The flag is not an image but a symbol of the Republic of the DECS.
Philippines, an emblem of national sovereignty, of national
unity and cohesion and of freedom and liberty which it and the In 1989, the DECS Regional Office in Cebu received
Constitution guarantee and protect. Under a system of complaints about teachers and pupils belonging to the
complete separation of church and state in the government, the Jehovah's Witnesses, and enrolled in various public and
flag is utterly devoid of any religious significance. Saluting the private schools, who refused to sing the Philippine national
flag does not involve any religious ceremony. The flag salute anthem, salute the Philippine flag and recite the patriotic
is no more a religious ceremony than the taking of an oath of pledge. Division Superintendent of Schools, Susana B.
office by a public official or by a candidate for admission to Cabahug of the Cebu Division of DECS, and Dr. Atty.
the bar. Marcelo M. Bacalso, Assistant Division Superintendent,
recalling this Court's decision in Gerona, issued Division
In requiring school pupils to participate in the flag salute, the Memorandum No. 108, dated November 17, 1989 (pp. 147-
State thru the Secretary of Education is not imposing a religion 148, Rollo of G.R. No. 95770) directing District Supervisors,
or religious belief or a religious test on said students. It is High School Principals and Heads of Private Educational
merely enforcing a institutions as follows:
non-discriminatory school regulation applicable to all alike
whether Christian, Moslem, Protestant or Jehovah's Witness. 1. Reports reaching this Office disclose that there are a
The State is merely carrying out the duty imposed upon it by number of teachers, pupils, students, and school employees in
the Constitution which charges it with supervision over and public schools who refuse to salute the Philippine flag or
regulation of all educational institutions, to establish and participate in the daily flag ceremony because of some
maintain a complete and adequate system of public education, religious belief.
and see to it that all schools aim to develop, among other
things, civic conscience and teach the duties of citizenship. 2. Such refusal not only undermines Republic Act No.
1265 and the DECS Department Order No. 8, Series of 1955
The children of Jehovah's Witnesses cannot be exempted from (Implementing Rules and Regulations) but also strikes at the
participation in the flag ceremony. They have no valid right to heart of the DECS sustained effort to inculcate patriotism and
such exemption. Moreover, exemption to the requirement will nationalism.
disrupt school discipline and demoralize the rest of the school
population which by far constitutes the great majority. 3. Let it be stressed that any belief that considers the
flag as an image is not in any manner whatever a justification
The freedom of religious belief guaranteed by the Constitution for not saluting the Philippine flag or not participating in flag
does not and cannot mean exemption from or non-compliance ceremony. Thus, the Supreme Court of the Philippine says:
with reasonable and non-discriminatory laws, rules and
regulations promulgated by competent authority. (pp. 2-3).
The flag is not an image but a symbol of the Republic of the xxx xxx xxx
Philippines, an emblem of national sovereignty, of national
unity and cohesion and freedom and liberty which it and the This order is in compliance with Division Memorandum No.
Constitution guarantee and protect. (Gerona, et al. vs. Sec. of 108 s. 1989 dated November 17, 1989 by virtue of Department
Education, et al., 106 Phil. 11.) Order No. 8 s. 1955 dated July 21, 1955 in accordance with
Republic Act No. 1265 and Supreme Court Decision of a case
4. As regards the claim for freedom of belief, which an "Genaro Gerona, et al., Petitioners and Appellants vs. The
objectionist may advance, the Supreme Court asserts: Honorable Secretary of Education, et al., Respondents and
Appellees' dated August 12, 1959 against their favor. (p. 149,
But between the freedom of belief and the exercise of said Rollo of G.R. No. 95770.)
belief, there is quite a stretch of road to travel. If the exercise
of said religious belief clashes with the established institutions In the Daan Bantayan District, the District Supervisor, Manuel
of society and with the law, then the former must yield and F. Biongcog, ordered the "dropping from the rolls" of students
give way to the latter. (Gerona, et al. vs. Sec. of Education, et who "opted to follow their religious belief which is against the
al., 106 Phil. 11.) Flag Salute Law" on the theory that "they forfeited their right
to attend public schools." (p. 47, Rollo of G.R. No. 95770.)
5. Accordingly, teachers and school employees who
choose not to participate in the daily flag ceremony or to obey 1st Indorsement
the flag salute regulation spelled out in Department Order No. DAANBANTAYAN DISTRICT II
8, Series of 1955, shall be considered removed from the Daanbantayan, Cebu, July 24, 1990.
service after due process.
Respectfully returned to Mrs. Alicia A. Diaz, School In Charge
6. In strong language about pupils and students who do [sic], Agujo Elementary School with the information that this
the same the Supreme Court has this to say: office is sad to order the dropping of Jeremias Diamos and
Jeaneth Diamos, Grades III and IV pupils respectively from
If they choose not to obey the flag salute regulation, they the roll since they opted to follow their religious belief which
merely lost the benefits of public education being maintained is against the Flag Salute Law (R.A. 1265) and DECS Order
at the expense of their fellow Citizens, nothing more. No. 8, series of 1955, having elected not to comply with the
According to a popular expression, they could take it or leave regulation about the flag salute they forfeited their right to
it! Having elected not to comply with the regulation about the attend public schools (Gerona, et al. vs. Sec. of Education, et
flag salute they forfeited their right to attend public schools. al., 106 Philippines 15). However, should they change their
(Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 15.) mind to respect and follow the Flag Salute Law they may be
re-accepted.
7. School administrators shall therefore submit to this
Office a report on those who choose not to participate in flag (Sgd.) MANUEL F. BIONGCOG
ceremony or salute the Philippine flag. (pp. 147-148, Rollo of District Supervisor
G.R. No. 95770; Emphasis supplied).
(p. 47, Rollo of G.R. No. 95770.)
Cebu school officials resorted to a number of ways to persuade
the children of Jehovah's Witnesses to obey the memorandum. The expulsion as of October 23, 1990 of the 43 petitioning
In the Buenavista Elementary School, the children were asked students of the Daanbantayan National High School, Agujo
to sign an Agreement (Kasabutan) in the Cebuano dialect Elementary School, Calape Barangay National High School,
promising to sing the national anthem, place their right hand Pinamungajan Provincial High School, Tabuelan Central
on their breast until the end of the song and recite the pledge School, Canasojan Elementary School, Liboron Elementary
of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. School, Tagaytay Primary School, San Juan Primary School
95770 and p. 48, Rollo of G.R. No. 95887), but they refused to and Northern Central Elementary School of San Fernando,
sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770). Cebu, upon order of then Acting Division Superintendent
Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu
In Tubigmanok Elementary School, the Teacher-In-Charge, to appeal to the Secretary of Education Isidro Cariño but the
Antonio A. Sangutan, met with the Jehovah's Witnesses' latter did not answer their letter. (p. 21, Rollo.)
parents, as disclosed in his letter of October 17, 1990, excerpts
from which reveal the following: The petition in G.R. No. 95887 was filed by 25 students who
were similarly expelled because Dr. Pablo Antopina, who
After two (2) fruitless confrontation meetings with the succeeded Susana Cabahug as Division Superintendent of
Jehovah's Witnesses' parents on October 2, 1990 and yesterday Schools, would not recall the expulsion orders of his
due to their firm stand not to salute the flag of the Republic of predecessor. Instead, he verbally caused the expulsion of some
the Philippines during Flag Ceremony and other occasions, as more children of Jehovah's Witnesses.
mandated by law specifically Republic Act No. 1265, this
Office hereby orders the dropping from the list in the School On October 31, 1990, the students and their parents filed these
Register (BPS Form I) of all teachers, all Jehovah Witness special civil actions for Mandamus, Certiorari and Prohibition
pupils from Grade I up to Grade VI effective today. alleging that the public respondents acted without or in excess
of their jurisdiction and with grave abuse of discretion — (1)
in ordering their expulsion without prior notice and hearing, 6. State's power to regulate repressive and unlawful
hence, in violation of their right to due process, their right to religious practices justified, besides having scriptural basis.
free public education, and their right to freedom of speech,
religion and worship (p. 23, Rollo). The petitioners pray that: 7. The penalty of expulsion is legal and valid, more so
with the enactment of Executive Order No. 292 (The
c. Judgment be rendered: Administrative Code of 1987).

i. declaring null and void the expulsion or dropping Our task here is extremely difficult, for the 30-year old
from the rolls of herein petitioners from their respective decision of this court in Gerona upholding the flag salute law
schools; and approving the expulsion of students who refuse to obey it,
is not lightly to be trifled with.
ii. prohibiting and enjoining respondent from further
barring the petitioners from their classes or otherwise It is somewhat ironic however, that after the Gerona ruling had
implementing the expulsion ordered on petitioners; and received legislative cachet by its in corporation in the
Administrative Code of 1987, the present Court believes that
iii. compelling the respondent and all persons acting for the time has come to re-examine it. The idea that one may be
him to admit and order the re-admission of petitioners to their compelled to salute the flag, sing the national anthem, and
respective schools. (p. 41, Rollo.) recite the patriotic pledge, during a flag ceremony on pain of
being dismissed from one's job or of being expelled from
and that pending the determination of the merits of these school, is alien to the conscience of the present generation of
cases, a temporary restraining order be issued enjoining the Filipinos who cut their teeth on the Bill of Rights which
respondents from enforcing the expulsion of the petitioners guarantees their rights to free speech ** and the free exercise
and to re-admit them to their respective classes. of religious profession and worship (Sec. 5, Article III, 1987
Constitution; Article IV, Section 8, 1973 Constitution; Article
On November 27, 1990, the Court issued a temporary III, Section 1[7], 1935 Constitution).
restraining order and a writ of preliminary mandatory
injunction commanding the respondents to immediately re- Religious freedom is a fundamental right which is entitled to
admit the petitioners to their respective classes until further the highest priority and the amplest protection among human
orders from this Court (p. 57, Rollo). rights, for it involves the relationship of man to his Creator
(Chief Justice Enrique M. Fernando's separate opinion in
The Court also ordered the Secretary of Education and Cebu German vs. Barangan, 135 SCRA 514, 530-531).
District Supervisor Manuel F. Biongcog to be impleaded as
respondents in these cases. The right to religious profession and worship has a two-fold
aspect, vis., freedom to believe and freedom to act on one's
On May 13, 1991, the Solicitor General filed a consolidated belief. The first is absolute as long as the belief is confined
comment to the petitions (p. 98, Rollo) defending the within the realm of thought. The second is subject to
expulsion orders issued by the public respondents on the regulation where the belief is translated into external acts that
grounds that: affect the public welfare (J. Cruz, Constitutional Law, 1991
Ed., pp. 176-177).
1. Bizarre religious practices of the Jehovah's Witnesses
produce rebellious and anti-social school children and Petitioners stress, however, that while they do not take part in
consequently disloyal and mutant Filipino citizens. the compulsory flag ceremony, they do not engage in "external
acts" or behavior that would offend their countrymen who
2. There are no new and valid grounds to sustain the believe in expressing their love of country through the
charges of the Jehovah's Witnesses that the DECS' rules and observance of the flag ceremony. They quietly stand at
regulations on the flag salute ceremonies are violative of their attention during the flag ceremony to show their respect for
freedom of religion and worship. the right of those who choose to participate in the solemn
proceedings (Annex F, Rollo of G.R. No. 95887, p. 50 and
3. The flag salute is devoid of any religious Rollo of G.R. No. 95770, p. 48). Since they do not engage in
significance; instead, it inculcates respect and love of country, disruptive behavior, there is no warrant for their expulsion.
for which the flag stands.
The sole justification for a prior restraint or limitation on the
4. The State's compelling interests being pursued by the exercise of religious freedom (according to the late Chief
DECS' lawful regulations in question do not warrant Justice Claudio Teehankee in his dissenting opinion in German
exemption of the school children of the Jehovah's Witnesses vs. Barangan, 135 SCRA 514, 517) is the existence of a grave
from the flag salute ceremonies on the basis of their own self- and present danger of a character both grave and imminent, of
perceived religious convictions. a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right
5. The issue is not freedom of speech but enforcement (and duty) to prevent." Absent such a threat to public safety,
of law and jurisprudence. the expulsion of the petitioners from the schools is not
justified.
The situation that the Court directly predicted in Gerona that: and to make such education accessible to all (Sec. 1, Art.
XIV).
The flag ceremony will become a thing of the past or perhaps
conducted with very few participants, and the time will come In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54,
when we would have citizens untaught and uninculcated in 72-75, we upheld the exemption of members of the Iglesia ni
and not imbued with reverence for the flag and love of Cristo, from the coverage of a closed shop agreement between
country, admiration for national heroes, and patriotism — a their employer and a union because it would violate the
pathetic, even tragic situation, and all because a small portion teaching of their church not to join any labor group:
of the school population imposed its will, demanded and was
granted an exemption. (Gerona, p. 24.) . . . It is certain that not every conscience can be
accommodated by all the laws of the land; but when general
has not come to pass. We are not persuaded that by exempting laws conflict with scruples of conscience, exemptions ought to
the Jehovah's Witnesses from saluting the flag, singing the be granted unless some "compelling state interests" intervenes.
national anthem and reciting the patriotic pledge, this religious (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83
group which admittedly comprises a "small portion of the S. Ct. 1790.)
school population" will shake up our part of the globe and
suddenly produce a nation "untaught and uninculcated in and We hold that a similar exemption may be accorded to the
unimbued with reverence for the flag, patriotism, love of Jehovah's Witnesses with regard to the observance of the flag
country and admiration for national heroes" (Gerona vs. Sec. ceremony out of respect for their religious beliefs, however
of Education, 106 Phil. 2, 24). After all, what the petitioners "bizarre" those beliefs may seem to others. Nevertheless, their
seek only is exemption from the flag ceremony, not exclusion right not to participate in the flag ceremony does not give
from the public schools where they may study the them a right to disrupt such patriotic exercises. Paraphrasing
Constitution, the democratic way of life and form of the warning cited by this Court in Non vs. Dames II, 185
government, and learn not only the arts, sciences, Philippine SCRA 523, 535, while the highest regard must be afforded
history and culture but also receive training for a vocation of their right to the free exercise of their religion, "this should not
profession and be taught the virtues of "patriotism, respect for be taken to mean that school authorities are powerless to
human rights, appreciation for national heroes, the rights and discipline them" if they should commit breaches of the peace
duties of citizenship, and moral and spiritual values (Sec. 3[2], by actions that offend the sensibilities, both religious and
Art. XIV, 1987 Constitution) as part of the curricula. Expelling patriotic, of other persons. If they quietly stand at attention
or banning the petitioners from Philippine schools will bring during the flag ceremony while their classmates and teachers
about the very situation that this Court had feared in Gerona. salute the flag, sing the national anthem and recite the patriotic
Forcing a small religious group, through the iron hand of the pledge, we do not see how such conduct may possibly disturb
law, to participate in a ceremony that violates their religious the peace, or pose "a grave and present danger of a serious evil
beliefs, will hardly be conducive to love of country or respect to public safety, public morals, public health or any other
for dully constituted authorities. legitimate public interest that the State has a right (and duty)
to prevent (German vs. Barangan, 135 SCRA 514, 517).
As Mr. Justice Jackson remarked in West Virginia vs. Barnette,
319 U.S. 624 (1943): Before we close this decision, it is appropriate to recall the
Japanese occupation of our country in 1942-1944 when every
. . . To believe that patriotism will not flourish if patriotic Filipino, regardless of religious persuasion, in fear of the
ceremonies are voluntary and spontaneous instead of a invader, saluted the Japanese flag and bowed before every
compulsory routine is to make an unflattering estimate of the Japanese soldier. Perhaps, if petitioners had lived through that
appeal of our institutions to free minds. . . . When they dark period of our history, they would not quibble now about
[diversity] are so harmless to others or to the State as those we saluting the Philippine flag. For when liberation came in 1944
deal with here, the price is not too great. But freedom to differ and our own flag was proudly hoisted aloft again, it was a
is not limited to things that do not matter much. That would be beautiful sight to behold that made our hearts pound with pride
a mere shadow of freedom. The test of its substance is the and joy over the newly-regained freedom and sovereignty of
right to differ as to things that touch the heart of the existing our nation.
order.
Although the Court upholds in this decision the petitioners'
Furthermore, let it be noted that coerced unity and loyalty right under our Constitution to refuse to salute the Philippine
even to the country, . . . — assuming that such unity and flag on account of their religious beliefs, we hope,
loyalty can be attained through coercion — is not a goal that is nevertheless, that another foreign invasion of our country will
constitutionally obtainable at the expense of religious liberty. not be necessary in order for our countrymen to appreciate and
A desirable end cannot be promoted by prohibited means. cherish the Philippine flag.
(Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)
WHEREFORE, the petition for certiorari and prohibition is
Moreover, the expulsion of members of Jehovah's Witnesses GRANTED. The expulsion orders issued by the public
from the schools where they are enrolled will violate their respondents against the petitioners are hereby ANNULLED
right as Philippine citizens, under the 1987 Constitution, to AND SET ASIDE. The temporary restraining order which was
receive free education, for it is the duty of the State to "protect issued by this Court is hereby made permanent.
and promote the right of all citizens to quality education . . .
SO ORDERED. But in the case at bar, the law to which the petitioners are
made to conform clashes with their own understanding of their
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., religious obligations. Significantly, as the ponencia notes, their
Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur. intransigence does not disturb the peaceful atmosphere of the
school or otherwise prejudice the public order. Their refusal to
Quiason, J., took no part. salute the flag and recite the patriotic pledge does not disrupt
the flag ceremony. They neither mock nor disdain it. The
Gutierrez, Jr., J., is on leave. petitioners simply stand at attention and keep quiet "to show
their respect for the right of those who choose to participate in
the solemn proceedings." It is for this innocuous conduct that,
Separate Opinions pursuant to the challenged law and regulations, the teachers
have been dismissed and the students excelled.

CRUZ, J., concurring: Freedom of speech includes the right to be silent. Aptly has it
been said that the Bill of Rights that guarantees to the
I am happy to concur with Mme. Justice Carolina Griño- individual the liberty to utter what is in his mind also
Aquino in her quietly eloquent affirmation of a vital postulate guarantees to him the liberty not to utter what is not in his
of freedom. I would only add my brief observations mind. The salute is a symbolic manner of communication that
concerning Gerona v. Secretary of Education. conveys its message as clearly as the written or spoken word.
As a valid form of expression, it cannot be compelled any
In my humble view, Gerona was based on an erroneous more than it can be prohibited in the face of valid religious
assumption. The Court that promulgated it was apparently objections like those raised in this petition. To impose it on the
laboring under the conviction that the State had the right to petitioners is to deny them the right not to speak when their
determine what was religious and what was not and to dictate religion bids them to be silent. This coercion of conscience has
to the individual what he could and could not worship. In no place in the free society.
pronouncing that the flag was not a religious image but a
symbol of the nation, it The democratic system provides for the accommodation of
was implying that no one had the right to worship it or — as diverse ideas, including the unconventional and even the
the petitioners insisted — not to worship it. This was no bizarre or eccentric. The will of the majority prevails, but it
different from saying that the cult that reveres Rizal as a cannot regiment thought by prescribing the recitation by rote
divinity should not and cannot do so because he is only a civic of its opinions or proscribing the assertion of unorthodox or
figure deserving honor but not veneration. unpopular views as in this case. The conscientious objections
of the petitioners, no less than the impatience of those who
It seems to me that every individual is entitled to choose for disagree with them, are protected by the Constitution. The
himself whom or what to worship or whether to worship at all. State cannot make the individual speak when the soul within
This is a personal decision he alone can make. The individual rebels.
may worship a spirit or a person or a beast or a tree (or a flag),
and the State cannot prevent him from doing so. For that PADILLA, J., concurring:
matter, neither can it compel him to do so. As long as his
beliefs are not externalized in acts that offend the public I concur in the Court's decision penned by Madame Justice
interest, he cannot be prohibited from harboring them or Carolina C. Griño-Aquino that school teachers and students
punished for doing so. who cannot salute the flag, sing the national anthem and recite
the pledge of loyalty to the country, on grounds of religious
In requiring the herein petitioners to participate in the flag belief or conviction, may not on this ground alone be
ceremony, the State has declared ex cathedra that they are not dismissed from the service or expelled from the school.
violating the Bible by saluting the flag. This is to me an
unwarranted intrusion into their religious beliefs, which tell At the same time, I am really concerned with what could be
them the opposite. The State cannot interpret the Bible for the
them; only they can read it as they see fit. Right or wrong, the far-reaching consequences of our ruling in that, we may in
meaning they derive from it cannot be revised or reversed effect be sanctioning a privileged or elite class of teachers and
except perhaps by their own acknowledged superiors. But students who will hereafter be exempt from participating, even
certainly not the State. It has no competence in this matter. when they are in the school premises, in the flag ceremony in
Religion is forbidden territory that the State, for all its power deference to their religious scruples. What happens, for
and authority, cannot invade. instance, if some citizens, based also on their religious beliefs,
were to refuse to pay taxes and license fees to the
I am not unaware of Justice Frankfurter's admonition that "the government? Perhaps problems of this nature should not be
constitutional protection of religious freedom terminated anticipated. They will be resolved when and if they ever arise.
disabilities, it did not create new privileges. It gave religious But with today's decision, we may have created more
equality, not civil immunity. Its essence is freedom from problems than we have solved.
conformity to religious dogma, not freedom from conformity
to law because of religious dogma." It cannot also be denied that the State has the right and even
the duty to promote among its citizens, especially the youth,
love and country, respect for the flag and reverence for its conformity with the provisions of Republic Act No. 409,
national heroes. It cannot also be disputed that the State has known as the Revised Charter of the City of Manila.
the right to adopt reasonable means by which these laudable
objectives can be effectively pursued and achieved. The flag In the course of its ministry, plaintiff's Philippine agency has
ceremony is one such device intended to inspire patriotism and been distributing and selling bibles and/or gospel portions
evoke the finest sentiments of love of country and people. thereof (except during the Japanese occupation) throughout
the Philippines and translating the same into several Philippine
In fine, the flag ceremony is a legitimate means to achieve dialects. On May 29 1953, the acting City Treasurer of the
legitimate (and noble) ends. For a select few to be exempt City of Manila informed plaintiff that it was conducting the
from the flag ceremony and all that it represent seven if the business of general merchandise since November, 1945,
exemption is predicated on respect for religious scruples, without providing itself with the necessary Mayor's permit and
could be divisive in its impact on the school population or municipal license, in violation of Ordinance No. 3000, as
community. amended, and Ordinances Nos. 2529, 3028 and 3364, and
required plaintiff to secure, within three days, the
I would therefore submit that, henceforth, teachers and corresponding permit and license fees, together with
students who because of religious scruples or beliefs cannot compromise covering the period from the 4th quarter of 1945
actively participate in the flag ceremony conducted in the to the 2nd quarter of 1953, in the total sum of P5,821.45
school premises should be excluded beforehand from such (Annex A).
ceremony. Instead of allowing the religious objector to attend
the flag ceremony and display therein his inability to salute the Plaintiff protested against this requirement, but the City
flag, sing the national anthem and recite the pledge of loyalty Treasurer demanded that plaintiff deposit and pay under
to the Republic, he or she should remain in the classroom protest the sum of P5,891.45, if suit was to be taken in court
while honors to the flag are conducted and manifested in the regarding the same (Annex B). To avoid the closing of its
"quadrangle" or equivalent place within school premises; or if business as well as further fines and penalties in the premises
the flag ceremony must be held in a hall, the religious objector on October 24, 1953, plaintiff paid to the defendant under
must take his or her place at the rear of (or outside) the hall protest the said permit and license fees in the aforementioned
while those who actively participate in the ceremony must amount, giving at the same time notice to the City Treasurer
take the front places. This arrangement can, in my view, that suit would be taken in court to question the legality of the
achieve an accommodation and, to a certain extent, ordinances under which, the said fees were being collected
harmonization of a citizen's constitutional right to freedom of (Annex C), which was done on the same date by filing the
religion and a valid exercise of the State's fundamental and complaint that gave rise to this action. In its complaint plaintiff
legitimate authority to require homage and honor to the flag as prays that judgment be rendered declaring the said Municipal
the symbol of the Nation. Ordinance No. 3000, as amended, and Ordinances Nos. 2529,
3028 and 3364 illegal and unconstitutional, and that the
# Footnotes defendant be ordered to refund to the plaintiff the sum of
P5,891.45 paid under protest, together with legal interest
** The flag salute, singing the national anthem and thereon, and the costs, plaintiff further praying for such other
reciting the patriotic pledge are all forms of utterances. relief and remedy as the court may deem just equitable.
Republic of the Philippines
SUPREME COURT Defendant answered the complaint, maintaining in turn that
Manila said ordinances were enacted by the Municipal Board of the
City of Manila by virtue of the power granted to it by section
EN BANC 2444, subsection (m-2) of the Revised Administrative Code,
superseded on June 18, 1949, by section 18, subsection (1) of
G.R. No. L-9637 April 30, 1957 Republic Act No. 409, known as the Revised Charter of the
City of Manila, and praying that the complaint be dismissed,
AMERICAN BIBLE SOCIETY, plaintiff-appellant, with costs against plaintiff. This answer was replied by the
vs. plaintiff reiterating the unconstitutionality of the often-
CITY OF MANILA, defendant-appellee. repeated ordinances.

City Fiscal Eugenio Angeles and Juan Nabong for Before trial the parties submitted the following stipulation of
appellant. facts:
Assistant City Fiscal Arsenio Nañawa for appellee.
FELIX, J.: COME NOW the parties in the above-entitled case, thru their
undersigned attorneys and respectfully submit the following
Plaintiff-appellant is a foreign, non-stock, non-profit, stipulation of facts:
religious, missionary corporation duly registered and doing
business in the Philippines through its Philippine agency 1. That the plaintiff sold for the use of the purchasers at its
established in Manila in November, 1898, with its principal principal office at 636 Isaac Peral, Manila, Bibles, New
office at 636 Isaac Peral in said City. The defendant appellee is Testaments, bible portions and bible concordance in English
a municipal corporation with powers that are to be exercised in and other foreign languages imported by it from the United
States as well as Bibles, New Testaments and bible portions in
the local dialects imported and/or purchased locally; that from 23,975.10
the fourth quarter of 1945 to the first quarter of 1953 inclusive
the sales made by the plaintiff were as follows: 2nd quarter 1949

Quarter 17,802.08

Amount of Sales 3rd quarter 1949

4th quarter 1945 16,640.79

P1,244.21 4th quarter 1949

1st quarter 1946 15,961.38

2,206.85 1st quarter 1950

2nd quarter 1946 18,562.46

1,950.38 2nd quarter 1950

3rd quarter 1946 21,816.32

2,235.99 3rd quarter 1950

4th quarter 1946 25,004.55

3,256.04 4th quarter 1950

1st quarter 1947 45,287.92

13,241.07 1st quarter 1951

2nd quarter 1947 37,841.21

15,774.55 2nd quarter 1951

3rd quarter 1947 29,103.98

14,654.13 3rd quarter 1951

4th quarter 1947 20,181.10

12,590.94 4th quarter 1951

1st quarter 1948 22,968.91

11,143.90 1st quarter 1952

2nd quarter 1948 23,002.65

14,715.26 2nd quarter 1952

3rd quarter 1948 17,626.96

38,333.83 3rd quarter 1952

4th quarter 1948 17,921.01

16,179.90 4th quarter 1952

1st quarter 1949 24,180.72


1st quarter 1953 Appellant contends that the lower Court erred:

29,516.21 1. In holding that Ordinances Nos. 2529 and 3000, as


respectively amended, are not unconstitutional;
2. That the parties hereby reserve the right to present evidence
of other facts not herein stipulated. 2. In holding that subsection m-2 of Section 2444 of the
Revised Administrative Code under which Ordinances Nos.
WHEREFORE, it is respectfully prayed that this case be set 2592 and 3000 were promulgated, was not repealed by Section
for hearing so that the parties may present further evidence on 18 of Republic Act No. 409;
their behalf. (Record on Appeal, pp. 15-16).
3. In not holding that an ordinance providing for taxes based
When the case was set for hearing, plaintiff proved, among on gross sales or receipts, in order to be valid under the new
other things, that it has been in existence in the Philippines Charter of the City of Manila, must first be approved by the
since 1899, and that its parent society is in New York, United President of the Philippines; and
States of America; that its, contiguous real properties located
at Isaac Peral are exempt from real estate taxes; and that it was 4. In holding that, as the sales made by the plaintiff-appellant
never required to pay any municipal license fee or tax before have assumed commercial proportions, it cannot escape from
the war, nor does the American Bible Society in the United the operation of said municipal ordinances under the cloak of
States pay any license fee or sales tax for the sale of bible religious privilege.
therein. Plaintiff further tried to establish that it never made
any profit from the sale of its bibles, which are disposed of for The issues. — As may be seen from the proceeding statement
as low as one third of the cost, and that in order to maintain its of the case, the issues involved in the present controversy may
operating cost it obtains substantial remittances from its New be reduced to the following: (1) whether or not the ordinances
York office and voluntary contributions and gifts from certain of the City of Manila, Nos. 3000, as amended, and 2529, 3028
churches, both in the United States and in the Philippines, and 3364, are constitutional and valid; and (2) whether the
which are interested in its missionary work. Regarding provisions of said ordinances are applicable or not to the case
plaintiff's contention of lack of profit in the sale of bibles, at bar.
defendant retorts that the admissions of plaintiff-appellant's
lone witness who testified on cross-examination that bibles Section 1, subsection (7) of Article III of the Constitution of
bearing the price of 70 cents each from plaintiff-appellant's the Republic of the Philippines, provides that:
New York office are sold here by plaintiff-appellant at P1.30
each; those bearing the price of $4.50 each are sold here at (7) No law shall be made respecting an establishment of
P10 each; those bearing the price of $7 each are sold here at religion, or prohibiting the free exercise thereof, and the free
P15 each; and those bearing the price of $11 each are sold here exercise and enjoyment of religious profession and worship,
at P22 each, clearly show that plaintiff's contention that it without discrimination or preference, shall forever be allowed.
never makes any profit from the sale of its bible, is evidently No religion test shall be required for the exercise of civil or
untenable. political rights.

After hearing the Court rendered judgment, the last part of Predicated on this constitutional mandate, plaintiff-appellant
which is as follows: contends that Ordinances Nos. 2529 and 3000, as respectively
amended, are unconstitutional and illegal in so far as its
As may be seen from the repealed section (m-2) of the society is concerned, because they provide for religious
Revised Administrative Code and the repealing portions (o) of censorship and restrain the free exercise and enjoyment of its
section 18 of Republic Act No. 409, although they seemingly religious profession, to wit: the distribution and sale of bibles
differ in the way the legislative intent is expressed, yet their and other religious literature to the people of the Philippines.
meaning is practically the same for the purpose of taxing the
merchandise mentioned in said legal provisions, and that the Before entering into a discussion of the constitutional aspect
taxes to be levied by said ordinances is in the nature of of the case, We shall first consider the provisions of the
percentage graduated taxes (Sec. 3 of Ordinance No. 3000, as questioned ordinances in relation to their application to the
amended, and Sec. 1, Group 2, of Ordinance No. 2529, as sale of bibles, etc. by appellant. The records, show that by
amended by Ordinance No. 3364). letter of May 29, 1953 (Annex A), the City Treasurer required
plaintiff to secure a Mayor's permit in connection with the
IN VIEW OF THE FOREGOING CONSIDERATIONS, this society's alleged business of distributing and selling bibles,
Court is of the opinion and so holds that this case should be etc. and to pay permit dues in the sum of P35 for the period
dismissed, as it is hereby dismissed, for lack of merits, with covered in this litigation, plus the sum of P35 for compromise
costs against the plaintiff. on account of plaintiff's failure to secure the permit required
by Ordinance No. 3000 of the City of Manila, as amended.
Not satisfied with this verdict plaintiff took up the matter to This Ordinance is of general application and not particularly
the Court of Appeals which certified the case to Us for the directed against institutions like the plaintiff, and it does not
reason that the errors assigned to the lower Court involved contain any provisions whatever prescribing religious
only questions of law. censorship nor restraining the free exercise and enjoyment of
any religious profession. Section 1 of Ordinance No. 3000
reads as follows: As may be seen, the license fees required to be paid quarterly
in Section 1 of said Ordinance No. 2529, as amended, are not
SEC. 1. PERMITS NECESSARY. — It shall be unlawful for imposed directly upon any religious institution but upon those
any person or entity to conduct or engage in any of the engaged in any of the business or occupations therein
businesses, trades, or occupations enumerated in Section 3 of enumerated, such as retail "dealers in general merchandise"
this Ordinance or other businesses, trades, or occupations for which, it is alleged, cover the business or occupation of selling
which a permit is required for the proper supervision and bibles, books, etc.
enforcement of existing laws and ordinances governing the
sanitation, security, and welfare of the public and the health of Chapter 60 of the Revised Administrative Code which
the employees engaged in the business specified in said includes section 2444, subsection (m-2) of said legal body, as
section 3 hereof, WITHOUT FIRST HAVING OBTAINED A amended by Act No. 3659, approved on December 8, 1929,
PERMIT THEREFOR FROM THE MAYOR AND THE empowers the Municipal Board of the City of Manila:
NECESSARY LICENSE FROM THE CITY TREASURER.
(M-2) To tax and fix the license fee on (a) dealers in new
The business, trade or occupation of the plaintiff involved in automobiles or accessories or both, and (b) retail dealers in
this case is not particularly mentioned in Section 3 of the new (not yet used) merchandise, which dealers are not yet
Ordinance, and the record does not show that a permit is subject to the payment of any municipal tax.
required therefor under existing laws and ordinances for the
proper supervision and enforcement of their provisions For the purpose of taxation, these retail dealers shall be
governing the sanitation, security and welfare of the public classified as (1) retail dealers in general merchandise, and (2)
and the health of the employees engaged in the business of the retail dealers exclusively engaged in the sale of (a) textiles . . .
plaintiff. However, sections 3 of Ordinance 3000 contains item (e) books, including stationery, paper and office supplies, . . .:
No. 79, which reads as follows: PROVIDED, HOWEVER, That the combined total tax of any
debtor or manufacturer, or both, enumerated under these
79. All other businesses, trades or occupations not subsections (m-1) and (m-2), whether dealing in one or all of
mentioned in this Ordinance, except those upon which the the articles mentioned herein, SHALL NOT BE IN EXCESS
City is not empowered to license or to tax P5.00 OF FIVE HUNDRED PESOS PER ANNUM.

Therefore, the necessity of the permit is made to depend upon and appellee's counsel maintains that City Ordinances Nos.
the power of the City to license or tax said business, trade or 2529 and 3000, as amended, were enacted in virtue of the
occupation. power that said Act No. 3669 conferred upon the City of
Manila. Appellant, however, contends that said ordinances are
As to the license fees that the Treasurer of the City of Manila longer in force and effect as the law under which they were
required the society to pay from the 4th quarter of 1945 to the promulgated has been expressly repealed by Section 102 of
1st quarter of 1953 in the sum of P5,821.45, including the sum Republic Act No. 409 passed on June 18, 1949, known as the
of P50 as compromise, Ordinance No. 2529, as amended by Revised Manila Charter.
Ordinances Nos. 2779, 2821 and 3028 prescribes the
following: Passing upon this point the lower Court categorically stated
that Republic Act No. 409 expressly repealed the provisions of
SEC. 1. FEES. — Subject to the provisions of section 578 of Chapter 60 of the Revised Administrative Code but in the
the Revised Ordinances of the City of Manila, as amended, opinion of the trial Judge, although Section 2444 (m-2) of the
there shall be paid to the City Treasurer for engaging in any of former Manila Charter and section 18 (o) of the new
the businesses or occupations below enumerated, quarterly, seemingly differ in the way the legislative intent was
license fees based on gross sales or receipts realized during the expressed, yet their meaning is practically the same for the
preceding quarter in accordance with the rates herein purpose of taxing the merchandise mentioned in both legal
prescribed: PROVIDED, HOWEVER, That a person engaged provisions and, consequently, Ordinances Nos. 2529 and 3000,
in any businesses or occupation for the first time shall pay the as amended, are to be considered as still in full force and effect
initial license fee based on the probable gross sales or receipts uninterruptedly up to the present.
for the first quarter beginning from the date of the opening of
the business as indicated herein for the corresponding business Often the legislature, instead of simply amending the pre-
or occupation. existing statute, will repeal the old statute in its entirety and by
the same enactment re-enact all or certain portions of the
xxx xxx xxx preexisting law. Of course, the problem created by this sort of
legislative action involves mainly the effect of the repeal upon
GROUP 2. — Retail dealers in new (not yet used) rights and liabilities which accrued under the original statute.
merchandise, which dealers are not yet subject to the payment Are those rights and liabilities destroyed or preserved? The
of any municipal tax, such as (1) retail dealers in general authorities are divided as to the effect of simultaneous repeals
merchandise; (2) retail dealers exclusively engaged in the sale and re-enactments. Some adhere to the view that the rights and
of . . . books, including stationery. liabilities accrued under the repealed act are destroyed, since
the statutes from which they sprang are actually terminated,
xxx xxx xxx even though for only a very short period of time. Others, and
they seem to be in the majority, refuse to accept this view of (ii) To tax, license and regulate any business, trade or
the situation, and consequently maintain that all rights an occupation being conducted within the City of Manila, not
liabilities which have accrued under the original statute are otherwise enumerated in the preceding subsections, including
preserved and may be enforced, since the re-enactment percentage taxes based on gross sales or receipts, subject to
neutralizes the repeal, therefore, continuing the law in force the approval of the PRESIDENT, except amusement taxes.
without interruption. (Crawford-Statutory Construction, Sec.
322). but this requirement of the President's approval was not
contained in section 2444 of the former Charter of the City of
Appellant's counsel states that section 18 (o) of Republic Act Manila under which Ordinance No. 2529 was promulgated.
No, 409 introduces a new and wider concept of taxation and is Anyway, as stated by appellee's counsel, the business of "retail
different from the provisions of Section 2444(m-2) that the dealers in general merchandise" is expressly enumerated in
former cannot be considered as a substantial re-enactment of subsection (o), section 18 of Republic Act No. 409; hence, an
the provisions of the latter. We have quoted above the ordinance prescribing a municipal tax on said business does
provisions of section 2444(m-2) of the Revised Administrative not have to be approved by the President to be effective, as it
Code and We shall now copy hereunder the provisions of is not among those referred to in said subsection (ii).
Section 18, subdivision (o) of Republic Act No. 409, which Moreover, the questioned ordinances are still in force, having
reads as follows: been promulgated by the Municipal Board of the City of
Manila under the authority granted to it by law.
(o) To tax and fix the license fee on dealers in general
merchandise, including importers and indentors, except those The question that now remains to be determined is whether
dealers who may be expressly subject to the payment of some said ordinances are inapplicable, invalid or unconstitutional if
other municipal tax under the provisions of this section. applied to the alleged business of distribution and sale of
bibles to the people of the Philippines by a religious
Dealers in general merchandise shall be classified as (a) corporation like the American Bible Society, plaintiff herein.
wholesale dealers and (b) retail dealers. For purposes of the
tax on retail dealers, general merchandise shall be classified With regard to Ordinance No. 2529, as amended by
into four main classes: namely (1) luxury articles, (2) semi- Ordinances Nos. 2779, 2821 and 3028, appellant contends that
luxury articles, (3) essential commodities, and (4) it is unconstitutional and illegal because it restrains the free
miscellaneous articles. A separate license shall be prescribed exercise and enjoyment of the religious profession and
for each class but where commodities of different classes are worship of appellant.
sold in the same establishment, it shall not be compulsory for
the owner to secure more than one license if he pays the higher Article III, section 1, clause (7) of the Constitution of the
or highest rate of tax prescribed by ordinance. Wholesale Philippines aforequoted, guarantees the freedom of religious
dealers shall pay the license tax as such, as may be provided profession and worship. "Religion has been spoken of as a
by ordinance. profession of faith to an active power that binds and elevates
man to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It has
For purposes of this section, the term "General merchandise" reference to one's views of his relations to His Creator and to
shall include poultry and livestock, agricultural products, fish the obligations they impose of reverence to His being and
and other allied products. character, and obedience to His Will (Davis vs. Beason, 133
U.S., 342). The constitutional guaranty of the free exercise and
The only essential difference that We find between these two enjoyment of religious profession and worship carries with it
provisions that may have any bearing on the case at bar, is the right to disseminate religious information. Any restraints
that, while subsection (m-2) prescribes that the combined total of such right can only be justified like other restraints of
tax of any dealer or manufacturer, or both, enumerated under freedom of expression on the grounds that there is a clear and
subsections (m-1) and (m-2), whether dealing in one or all of present danger of any substantive evil which the State has the
the articles mentioned therein, shall not be in excess of P500 right to prevent". (Tañada and Fernando on the Constitution of
per annum, the corresponding section 18, subsection (o) of the Philippines, Vol. 1, 4th ed., p. 297). In the case at bar the
Republic Act No. 409, does not contain any limitation as to the license fee herein involved is imposed upon appellant for its
amount of tax or license fee that the retail dealer has to pay per distribution and sale of bibles and other religious literature:
annum. Hence, and in accordance with the weight of the
authorities above referred to that maintain that "all rights and In the case of Murdock vs. Pennsylvania, it was held that an
liabilities which have accrued under the original statute are ordinance requiring that a license be obtained before a person
preserved and may be enforced, since the reenactment could canvass or solicit orders for goods, paintings, pictures,
neutralizes the repeal, therefore continuing the law in force wares or merchandise cannot be made to apply to members of
without interruption", We hold that the questioned ordinances Jehovah's Witnesses who went about from door to door
of the City of Manila are still in force and effect. distributing literature and soliciting people to "purchase"
certain religious books and pamphlets, all published by the
Plaintiff, however, argues that the questioned ordinances, to be Watch Tower Bible & Tract Society. The "price" of the books
valid, must first be approved by the President of the was twenty-five cents each, the "price" of the pamphlets five
Philippines as per section 18, subsection (ii) of Republic Act cents each. It was shown that in making the solicitations there
No. 409, which reads as follows: was a request for additional "contribution" of twenty-five
cents each for the books and five cents each for the pamphlets.
Lesser sum were accepted, however, and books were even by others than the public, is not sufficient to justify the State's
donated in case interested persons were without funds. permitting a corporation to govern a community of citizens so
as to restrict their fundamental liberties and the enforcement of
On the above facts the Supreme Court held that it could not be such restraint by the application of a State statute." (Tañada
said that petitioners were engaged in commercial rather than a and Fernando on the Constitution of the Philippines, Vol. 1,
religious venture. Their activities could not be described as 4th ed., p. 304-306).
embraced in the occupation of selling books and pamphlets.
Then the Court continued: Section 27 of Commonwealth Act No. 466, otherwise known
as the National Internal Revenue Code, provides:
"We do not mean to say that religious groups and the press are
free from all financial burdens of government. See Grosjean SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS.
vs. American Press Co., 297 U.S., 233, 250, 80 L. ed. 660, — The following organizations shall not be taxed under this
668, 56 S. Ct. 444. We have here something quite different, for Title in respect to income received by them as such —
example, from a tax on the income of one who engages in
religious activities or a tax on property used or employed in (e) Corporations or associations organized and operated
connection with activities. It is one thing to impose a tax on exclusively for religious, charitable, . . . or educational
the income or property of a preacher. It is quite another to purposes, . . .: Provided, however, That the income of
exact a tax from him for the privilege of delivering a sermon. whatever kind and character from any of its properties, real or
The tax imposed by the City of Jeannette is a flat license tax, personal, or from any activity conducted for profit, regardless
payment of which is a condition of the exercise of these of the disposition made of such income, shall be liable to the
constitutional privileges. The power to tax the exercise of a tax imposed under this Code;
privilege is the power to control or suppress its enjoyment. . . .
Those who can tax the exercise of this religious practice can Appellant's counsel claims that the Collector of Internal
make its exercise so costly as to deprive it of the resources Revenue has exempted the plaintiff from this tax and says that
necessary for its maintenance. Those who can tax the privilege such exemption clearly indicates that the act of distributing
of engaging in this form of missionary evangelism can close and selling bibles, etc. is purely religious and does not fall
all its doors to all those who do not have a full purse. under the above legal provisions.
Spreading religious beliefs in this ancient and honorable
manner would thus be denied the needy. . . . It may be true that in the case at bar the price asked for the
bibles and other religious pamphlets was in some instances a
It is contended however that the fact that the license tax can little bit higher than the actual cost of the same but this cannot
suppress or control this activity is unimportant if it does not do mean that appellant was engaged in the business or occupation
so. But that is to disregard the nature of this tax. It is a license of selling said "merchandise" for profit. For this reason We
tax — a flat tax imposed on the exercise of a privilege granted believe that the provisions of City of Manila Ordinance No.
by the Bill of Rights . . . The power to impose a license tax on 2529, as amended, cannot be applied to appellant, for in doing
the exercise of these freedom is indeed as potent as the power so it would impair its free exercise and enjoyment of its
of censorship which this Court has repeatedly struck down. . . . religious profession and worship as well as its rights of
It is not a nominal fee imposed as a regulatory measure to dissemination of religious beliefs.
defray the expenses of policing the activities in question. It is
in no way apportioned. It is flat license tax levied and With respect to Ordinance No. 3000, as amended, which
collected as a condition to the pursuit of activities whose requires the obtention the Mayor's permit before any person
enjoyment is guaranteed by the constitutional liberties of press can engage in any of the businesses, trades or occupations
and religion and inevitably tends to suppress their exercise. enumerated therein, We do not find that it imposes any charge
That is almost uniformly recognized as the inherent vice and upon the enjoyment of a right granted by the Constitution, nor
evil of this flat license tax." tax the exercise of religious practices. In the case of Coleman
vs. City of Griffin, 189 S.E. 427, this point was elucidated as
Nor could dissemination of religious information be follows:
conditioned upon the approval of an official or manager even
if the town were owned by a corporation as held in the case of An ordinance by the City of Griffin, declaring that the practice
Marsh vs. State of Alabama (326 U.S. 501), or by the United of distributing either by hand or otherwise, circulars,
States itself as held in the case of Tucker vs. Texas (326 U.S. handbooks, advertising, or literature of any kind, whether said
517). In the former case the Supreme Court expressed the articles are being delivered free, or whether same are being
opinion that the right to enjoy freedom of the press and sold within the city limits of the City of Griffin, without first
religion occupies a preferred position as against the obtaining written permission from the city manager of the City
constitutional right of property owners. of Griffin, shall be deemed a nuisance and punishable as an
offense against the City of Griffin, does not deprive defendant
"When we balance the constitutional rights of owners of of his constitutional right of the free exercise and enjoyment of
property against those of the people to enjoy freedom of press religious profession and worship, even though it prohibits him
and religion, as we must here, we remain mindful of the fact from introducing and carrying out a scheme or purpose which
that the latter occupy a preferred position. . . . In our view the he sees fit to claim as a part of his religious system.
circumstance that the property rights to the premises where the
deprivation of property here involved, took place, were held
It seems clear, therefore, that Ordinance No. 3000 cannot be The Office of the Solicitor General (OSG) entered its
considered unconstitutional, even if applied to plaintiff appearance for petitioner Republic of the Philippines
Society. But as Ordinance No. 2529 of the City of Manila, as authorizing the Office of the City Prosecutor of Dagupan to
amended, is not applicable to plaintiff-appellant and appear on its behalf. Likewise, a Manifestation and Motion
defendant-appellee is powerless to license or tax the business was filed questioning the title and/or caption of the petition
of plaintiff Society involved herein for, as stated before, it considering that, based on the allegations therein, the proper
would impair plaintiff's right to the free exercise and action should be a petition for recognition and enforcement of
enjoyment of its religious profession and worship, as well as a foreign judgment.
its rights of dissemination of religious beliefs, We find that
Ordinance No. 3000, as amended is also inapplicable to said As a result, Manalo moved to admit an Amended Petition,
business, trade or occupation of the plaintiff. which the court granted. The Amended Petition, which
captioned that it is also a petition for recognition and
Wherefore, and on the strength of the foregoing enforcement of foreign judgment, alleged:
considerations, We hereby reverse the decision appealed from,
sentencing defendant return to plaintiff the sum of P5,891.45 2. That petitioner is previously married in the Philippines to a
unduly collected from it. Without pronouncement as to costs. Japanese national named YOSHINO MINORO as shown by
It is so ordered. their Marriage Contract x x x;

Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, 3. That recently, a case for divorce was filed by herein
Concepcion and Endencia, JJ., concur. [petitioner] in Japan and after due proceedings, a divorce
EN BANC decree dated December 6, 2011 was rendered by the Japanese
[ G.R. No. 221029, April 24, 2018 ] Court x x x;
REPUBLIC OF THE PHILIPPINES, PETITIONER, V.
MARELYN TANEDO MANALO, RESPONDENT. 4. That at present, by virtue of the said divorce decree,
petitioner and her divorced Japanese husband are no longer
DECISION living together and in fact, petitioner and her daughter are
PERALTA, J.: living separately from said Japanese former husband;

This petition for review on certiorari under Rule 45 of the 5. That there is an imperative need to have the entry of
Rules of Court (Rules) seeks to reverse and set aside the marriage in the Civil Registry of San Juan, Metro Manila
September 18, 2014 Decision[1] and October 12, 2015 cancelled, where the petitioner and the former Japanese
Resolution[2] of the Court of Appeals (CA) in CA-G.R. CV husband's marriage was previously registered, in order that it
No. 100076. The dispositive portion of the Decision states: would not appear anymore that petitioner is still married to the
WHEREFORE, the instant appeal is GRANTED. The said Japanese national who is no longer her husband or is no
Decision dated 15 October 2012 of the Regional Trial Court of longer married to her; furthermore, in the event that petitioner
Dagupan City, First Judicial Region, Branch 43, in SPEC. decides to be remarried, she shall not be bothered and
PROC. NO. 2012-0005 is REVERSED and SET ASIDE. disturbed by said entry of marriage;

Let a copy of this Decision be served on the Local Civil 6. That this petition is filed principally for the purpose of
Registrar of San Juan, Metro Manila. causing the cancellation of entry of the marriage between the
petitioner and the said Japanese national, pursuant to Rule 108
SO ORDERED.[3] of the Revised Rules of Court, which marriage was already
dissolved by virtue of the aforesaid divorce decree; [and]
The facts are undisputed.
7. That petitioner prays, among others, that together with the
On January 10, 2012, respondent Marelyn Tanedo Manalo cancellation of the said entry of her marriage, that she be
(Manalo) filed a petition for cancellation of entry of marriage allowed to return and use. her maiden surname, MANALO.[4]
in the Civil Registry of San Juan, Metro Manila, by virtue of a
judgment of divorce rendered by a Japanese court. Manalo was allowed to testify in advance as she was
scheduled to leave for Japan for her employment. Among the
Finding the petition to be sufficient in form and in substance, documents that were offered and admitted were:
Branch 43 of the Regional Trial Court (RTC) of Dagupan City
set the case for initial hearing on April 25, 2012. The petition 1. Court Order dated January 25, 2012, finding the petition
and the notice of initial hearing were published once a week and its attachments to be sufficient in form and in substance;
for three consecutive weeks in a newspaper of general
circulation. During the initial hearing, counsel for Manalo 2. Affidavit of Publication;
marked the documentary evidence (consisting of the trial
court's Order dated January 25, 2012, affidavit of publication, 3. Issues of the Northern Journal dated February 21-27, 2012,
and issues of the Northern Journal dated February 21-27, February 28 - March 5, 2012, and March 6-12, 2012;
2012, February 28 - March 5, 2012, and March 6-12, 2012) for
purposes of compliance with the jurisdictional requirements. 4. Certificate of Marriage between Manalo and her former
Japanese husband;
3. An absolute divorce obtained abroad by a couple, who are
5. Divorce Decree of the Japanese court; both aliens, may be recognized in the Philippines, provided it
is consistent with their respective national laws.[14]
6. Authentication/Certificate issued by the Philippine
Consulate General in Osaka, Japan of the Notification of 4. In mixed marriages involving a Filipino and a foreigner, the
Divorce; and former is allowed to contract a subsequent marriage in case the
absolute divorce is validly obtained abroad by the alien spouse
7. Acceptance of Certificate of Divorce.[5] capacitating him or her to remarry.[15]

The OSG did not present any controverting evidence to rebut On July 6, 1987, then President Corazon C. Aquino signed
the allegations of Manalo. into law Executive Order (E.O.) No. 209, otherwise known as
The Family Code of the Philippines, which took effect on
On October 15, 2012, the trial court denied the petition for August 3, 1988.[16] Shortly thereafter, E.O. No. 227 was
lack of merit. In ruling that the divorce obtained by Manalo in issued on July 17, 1987.[17] Aside from amending Articles 36
Japan should not be recognized, it opined that, based on and 39 of the Family Code, a second paragraph was added to
Article 15 of the New Civil Code, the Philippine law "does not Article 26.[18] This provision was originally deleted by the
afford Filipinos the right to file for a divorce, whether they are Civil Code Revision Committee (Committee), but it was
in the country or living abroad, if they are married to Filipinos presented and approved at a Cabinet meeting after Pres.
or to foreigners, or if they celebrated their marriage in the Aquino signed E.O. No. 209.[19] As modified, Article 26 now
Philippines or in another country" and that unless Filipinos states:
"are naturalized as citizens of another country, Philippine laws
shall have control over issues related to Filipinos' family rights Art. 26. All marriages solemnized outside the Philippines, in
and duties, together with the determination of their condition accordance with the laws in force in the country where they
and legal capacity to enter into contracts and civil relations, were solemnized, and valid there as such, shall also be valid in
including marriages."[6] this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
On appeal, the CA overturned the RTC decision. It held that
Article 26 of the Family Code of the Philippines (Family Where a marriage between a Filipino citizen and a foreigner is
Code) is applicable even if it was Manalo who filed for validly celebrated and a divorce is thereafter validly obtained
divorce against her Japanese husband because the decree they abroad by the alien spouse capacitating him or her to remarry,
obtained makes the latter no longer married to the former, the Filipino spouse shall likewise have capacity to remarry
capacitating him to remarry. Conformably with Navarro, et al. under Philippine law.
v. Exec. Secretary Ermita, et al.[7] ruling that the meaning of
the law should be based on the intent of the lawmakers and in Paragraph 2 of Article 26 confers jurisdiction on Philippine
view of the legislative intent behind Article 26, it would be the courts to extend the effect of a foreign divorce decree to a
height of injustice to consider Manalo as still married to the Filipino spouse without undergoing trial to determine the
Japanese national, who, in turn, is no longer married to her. validity of the dissolution of the marriage.[20] It authorizes
For the appellate court, the fact that it was Manalo who filed our courts to adopt the effects of a foreign divorce decree
the divorce case is inconsequential. Cited as similar to this precisely because the Philippines does not allow divorce.[21]
case was Van Dorn v. Judge Romillo, Jr.[8] where the marriage Philippine courts cannot try the case on the merits because it is
between a foreigner and a Filipino was dissolved through a tantamount to trying a divorce case.[22] Under the principles
divorce filed abroad by the latter. of comity, our jurisdiction recognizes a valid divorce obtained
by a spouse of foreign nationality, but the legal effects thereof,
The OSG filed a motion for reconsideration, but it was denied; e.g., on custody, care and support of the children or property
hence, this petition. relations of the spouses, must still be determined by our
courts.[23]
We deny the petition and partially affirm the CA decision.
According to Judge Alicia Sempio-Diy, a member of the
Divorce, the legal dissolution of a lawful union for a cause Committee, the idea of the amendment is to avoid the absurd
arising after marriage, are of two types: (1) absolute divorce or situation of a Filipino as still being married to his or her alien
a vinculo matrimonii, which terminates the marriage, and (2) spouse, although the latter is no longer married to the former
limited divorce or a mensa et thoro, which suspends it and because he or she had obtained a divorce abroad that is
leaves the bond in full force.[9] In this jurisdiction, the recognized by his or her national law.[24] The aim was that it
following rules exist: would solve the problem of many Filipino women who, under
the New Civil Code, are still considered married to their alien
1. Philippine law does not provide for absolute divorce; hence, husbands even after the latter have already validly divorced
our courts cannot grant it.[10] them under their (the husbands') national laws and perhaps
have already married again.[25]
2. Consistent with Articles 15[11] and 17[12] of the New Civil
Code, the marital bond between two Filipinos cannot be In 2005, this Court concluded that Paragraph 2 of Article 26
dissolved even by an absolute divorce obtained abroad.[13] applies to a case where, at the time of the celebration of the
marriage, the parties were Filipino citizens, but later on, one of
them acquired foreign citizenship by naturalization, initiated a Both Dacasin v. Dacasin[28] and Van Dorn[29] already
divorce proceeding, and obtained a favorable decree. We held recognized a foreign divorce decree that was initiated and
in Republic of the Phils. v. Orbecido III:[26] obtained by the Filipino spouse and extended its legal effects
on the issues of child custody and property relation,
The jurisprudential answer lies latent in the 1998 case of Quita respectively.
v. Court of Appeals. In Quita, the parties were, as in this case,
Filipino citizens when they got married. The wife became a In Dacasin, post-divorce, the former spouses executed an
naturalized American citizen in 1954 and obtained a divorce in Agreement for the joint custody of their minor daughter. Later
the same year. The Court therein hinted, by way of obiter on, the husband, who is a US citizen, sued his Filipino wife to
dictum, that a Filipino divorced by his naturalized foreign enforce the Agreement, alleging that it was only, the latter who
spouse is no longer married under Philippine law and can thus exercised sole custody of their child. The trial court dismissed
remarry. the action for lack of jurisdiction, on the ground, among
others, that the divorce decree is binding following the
Thus, taking into consideration the legislative intent and "nationality rule" prevailing in this jurisdiction. The husband
applying the rule of reason, we hold that Paragraph 2 of moved to reconsider, arguing that the divorce decree obtained
Article 26 should be interpreted to include cases involving by his former wife is void, but it was denied. In ruling that the
parties who, at the time of the celebration of the marriage were trial court has jurisdiction to entertain the suit but not to
Filipino citizens, but later on, one of them becomes enforce the Agreement, which is void, this Court said:
naturalized as a foreign citizen and obtains a divorce decree.
The Filipino spouse should likewise be allowed to remarry as Nor can petitioner rely on the divorce decree's alleged
if the other party were a foreigner at the time of the invalidity - not because the Illinois court lacked jurisdiction or
solemnization of the marriage. To rule otherwise would be to that the divorce decree violated Illinois law, but because the
sanction absurdity and injustice. x x x divorce was obtained by his Filipino spouse - to support the
Agreement's enforceability. The argument that foreigners in
If we are to give meaning to the legislative intent to avoid the this jurisdiction are not bound by foreign divorce decrees is
absurd situation where the Filipino spouse remains married to hardly novel. Van Dorn v. Romillo settled the matter by
the alien spouse who, after obtaining a divorce is no longer holding that an alien spouse of a Filipino is bound by a divorce
married to the Filipino spouse, then the instant case must be decree obtained abroad. There, we dismissed the alien
deemed as coming within the contemplation of Paragraph 2 of divorcee's Philippine suit for accounting of alleged post-
Article 26. divorce conjugal property and rejected his submission that the
foreign divorce (obtained by the Filipino spouse) is not valid
In view of the foregoing, we state the twin elements for the in this jurisdiction x x x.[30]
application of Paragraph 2 of Article 26 as follows:
Van Dorn was decided before the Family Code took into
There is a valid marriage that has been celebrated between a effect. There, a complaint was filed by the ex-husband, who is
Filipino citizen and a foreigner; and a US citizen, against his Filipino wife to render an accounting
of a business that was alleged to be a conjugal property and to
A valid divorce is obtained abroad by the alien spouse be declared with right to manage the same. Van Dorn moved
capacitating him or her to remarry. to dismiss the case on the ground that the cause of action was
The reckoning point is not the citizenship of the parties at the barred by previous judgment in the divorce proceedings that
time of the celebration of the marriage, but their citizenship at she initiated, but the trial court denied the motion. On his part,
the time a valid divorce is obtained abroad by the alien spouse her ex-husband averred that the divorce decree issued by the
capacitating the latter to remarry.[27] Nevada court could not prevail over the prohibitive laws of the
Philippines and its declared national policy; that the acts and
Now, the Court is tasked to resolve whether, under the same declaration of a foreign court cannot, especially if the same is
provision, a Filipino citizen has the capacity to remarry under contrary to public policy, divest Philippine courts of
Philippine law after initiating a divorce proceeding abroad and jurisdiction to entertain matters within its jurisdiction. In
obtaining a favorable judgment against his or her alien spouse dismissing the case filed by the alien spouse, the Court
who is capacitated to remarry. Specifically, Manalo pleads for discussed the effect of the foreign divorce on the parties and
the recognition and enforcement of the divorce decree their conjugal property in the Philippines. Thus:
rendered by the Japanese court and for the cancellation of the
entry of marriage in the local civil registry "in order that it There can be no question as to the validity of that Nevada
would not appear anymore that [she] is still married to the said divorce in any of the States of the United States. The decree is
Japanese national who is no longer her husband or is no longer binding on private respondent as an American citizen. For
married to her; [and], in the event that [she] decides to be instance, private respondent cannot sue petitioner, as her
remarried, she shall not be bothered and disturbed by said husband, in any State of the Union. What he is contending in
entry of marriage," and to return and to use her maiden this case is that the divorce is not valid and binding in this
surname. jurisdiction, the same being contrary to local law and public
policy.
We rule in the affirmative.
It is true that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same being petition under Rule 108 to cancel the entry of marriage
considered contrary to our concept of public policy and between Marinay and Maekara in the civil registry on the basis
morality. However, aliens may obtain divorces abroad, which of the decree of the Japanese Family Court.
may be recognized in the Philippines, provided they are valid
according to their national law. In this case, the divorce in There is no doubt that the prior spouse has a personal and
Nevada released private respondent from the marriage from material interest in maintaining the integrity of the marriage he
the standards of American law, under which divorce dissolves contracted and the property relations arising from it. There is
the marriage. As stated by the Federal Supreme Court of the also no doubt that he is interested in the cancellation of an
United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: entry of a bigamous marriage in the civil registry, which
compromises the public record of his marriage. The interest
"The purpose and effect of a decree of divorce from the bond derives from the substantive right of the spouse not only to
of matrimony by a court of competent jurisdiction are to preserve (or dissolve, in limited instances) his most intimate
change the existing status or domestic relation of husband and human relation, but also to protect his property interests that
wife, and to free them both from the bond. The marriage tie, arise by operation of law the moment he contracts marriage.
when thus severed as to one party, ceases to bind either. A These property interests in marriage include the right to be
husband without a wife, or a wife without a husband, is supported "in keeping with the financial capacity of the
unknown to the law. When the law provides, in the nature of a family" and preserving the property regime of the marriage.
penalty, that the guilty party shall not marry again, that party,
as well as the other, is still absolutely freed from the bond of Property rights are already substantive rights protected by the
the former marriage." Constitution, but a spouse's right in a marriage extends further
to relational rights recognized under Title III ("Rights and
Thus, pursuant to his national law, private respondent is no Obligations between Husband and Wife") of the Family Code.
longer the husband of petitioner. He would have no standing to x x x[34]
sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. As he is bound by the On the other hand, in Medina, the Filipino wife and her
Decision of his own country's Court, which validly exercised Japanese husband jointly filed for divorce, which was granted.
jurisdiction over him, and whose decision he does not Subsequently, she filed a petition before the RTC for judicial
repudiate, he is estopped by his own representation before said recognition of foreign divorce and declaration of capacity to
Court from asserting his right over the alleged conjugal remarry pursuant to Paragraph 2 of Article 26. The RTC
property. denied the petition on the ground that the foreign divorce
decree and the national law of the alien spouse recognizing his
To maintain, as private respondent does, that, under our laws, capacity to obtain a divorce decree must be proven in
petitioner has to be considered still married to private accordance with Sections 24 and 25 of Rule 132 of the
respondent and still subject to a wife's obligations under Revised Rules on Evidence. This Court agreed and ruled that,
Article 109, et. seq. of the Civil Code cannot be just. Petitioner consistent with Corpuz v. Sto. Tomas, et al.[35] and Garcia v.
should not be obliged to live together with, observe respect Recio,[36] the divorce decree and the national law of the alien
and fidelity, and render support to private respondent. The spouse must be proven. Instead of dismissing the case, We
latter should not continue to be one of her heirs with possible referred it to the CA for appropriate action including the
rights to conjugal property. She should not be discriminated reception of evidence to determine and resolve the pertinent
against in her own country if the ends of justice are to be factual issues.
served.[31]
There is no compelling reason to deviate from the above-
In addition, the fact that a validly obtained foreign divorce mentioned rulings. When this Court recognized a foreign
initiated by the Filipino spouse can be recognized and given divorce decree that was initiated and obtained by the Filipino
legal effects in the Philippines is implied from Our rulings in spouse and extended its legal effects on the issues of child
Fujiki v. Marinay, et al.[32] and Medina v. Koike.[33] custody and property relation, it should not stop short in
likewise acknowledging that one of the usual and necessary
In Fujiki, the Filipino wife, with the help of her first husband, consequences of absolute divorce is the right to remarry.
who is a Japanese national, was able to obtain a judgment Indeed, there is no longer a mutual obligation to live together
from Japan's family court, which declared the marriage and observe fidelity. When the marriage tie is severed and
between her and her second husband, who is a Japanese ceased to exist, the civil status and the domestic relation of the
national, void on the ground of bigamy. In resolving the issue former spouses change as both of them are freed from the
of whether a husband or wife of a prior marriage can file a marital bond.
petition to recognize a foreign judgment nullifying the
subsequent marriage between his or her spouse and a foreign The dissent is of the view that, under the nationality principle,
citizen on the ground of bigamy, We ruled: Manalo's personal status is subject to Philippine law, which
prohibits absolute divorce. Hence, the divorce decree which
Fujiki has the personality to file a petition to recognize the she obtained under Japanese law cannot be given effect, as she
Japanese Family Court judgment nullifying the marriage is, without dispute, a national not of Japan, but of the
between Marinay and Maekara on the ground of bigamy Philippines. It is said that a contrary ruling will subvert not
because the judgment concerns his civil status as married to only the intention of the framers of the law, but also that of the
Marinay. For the same reason he has the personality to file a Filipino people, as expressed in the Constitution. The Court is,
therefore, bound to respect the prohibition until the legislature Conveniently invoking the nationality principle is erroneous.
deems it fit to lift the same. Such principle, found under Article 15 of the Civil Code, is
not an absolute and unbending rule. In fact, the mere existence
We beg to differ. of Paragraph 2 of Article 26 is a testament that the State may
provide for an exception thereto. Moreover, blind adherence to
Paragraph 2 of Article 26 speaks of "a divorce x x x validly the nationality principle must be disallowed if it would cause
obtained abroad by the alien spouse capacitating him or her to unjust discrimination and oppression to certain classes of
remarry. " Based on a clear and plain reading of the provision, individuals whose rights are equally protected by law. The
it only requires that there be a divorce validly obtained abroad. courts have the duty to enforce the laws of divorce as written
The letter of the law does not demand that the alien spouse by the Legislature only if they are constitutional.[43]
should be the one who initiated the proceeding wherein the
divorce decree was granted. It does not distinguish whether the While the Congress is allowed a wide leeway in providing for
Filipino spouse is the petitioner or the respondent in the a valid classification and that its decision is accorded
foreign divorce proceeding. The Court is bound by the words recognition and respect by the courts of justice, such
of the statute; neither can We put words in the mouths of the classification may be subjected to judicial review.[44] The
lawmakers.[37] "The legislature is presumed to know the deference stops where the classification violates a fundamental
meaning of the words, to have used words advisedly, and to right, or prejudices persons accorded special protection by the
have expressed its intent by the use of such words as are found Constitution.[45] When these violations arise, this Court must
in the statute. Verba legis non est recedendum, or from the discharge its primary role as the vanguard of constitutional
words of a statute there should be no departure."[38] guaranties, and require a stricter and more exacting adherence
to constitutional limitations.[46] If a legislative classification
Assuming, for the sake of argument, that the word "obtained" impermissibly interferes with the exercise of a fundamental
should be interpreted to mean that the divorce proceeding right or operates to the peculiar disadvantage of a suspect class
must be actually initiated by the alien spouse, still, the Court strict judicial scrutiny is required since it is presumed
will not follow the letter of the statute when to do so would unconstitutional, and the burden is upon the government to
depart from the true intent of the legislature or would prove that the classification is necessary to achieve a
otherwise yield conclusions inconsistent with the general compelling state interest and that it is the least restrictive
purpose of the act.[39] Laws have ends to achieve, and statutes means to protect such interest.[47]
should be so construed as not to defeat but to carry out such
ends and purposes.[40] As held in League of Cities of the "Fundamental rights" whose infringement leads to strict
Phils., et al. v. COMELEC, et al.:[41] scrutiny under the equal protection clause are those basic
liberties explicitly or implicitly guaranteed in the Constitution.
The legislative intent is not at all times accurately reflected in [48] It includes the right of procreation, the right to marry, the
the manner in which the resulting law is couched. Thus, right to exercise free speech, political expression, press,
applying a verba legis or strictly literal interpretation of a assembly, and so forth, the right to travel, and the right to vote.
statute may render it meaningless and lead to inconvenience, [49] On the other hand, what constitutes compelling state
an absurd situation or injustice. To obviate this aberration, and interest is measured by the scale of rights and powers arrayed
bearing in mind the principle that the intent or the spirit of the in the Constitution and calibrated by history.[50] It is akin to
law is the law itself, resort should be to the rule that the spirit the paramount interest of the state for which some individual
of the law controls its letter. liberties must give way, such as the promotion of public
interest, public safety or the general welfare.[51] It essentially
To reiterate, the purpose of Paragraph 2 of Article 26 is to involves a public right or interest that, because of its primacy,
avoid the absurd situation where the Filipino spouse remains overrides individual rights, and allows the former to take
married to the alien spouse who, after a foreign divorce decree precedence over the latter.[52]
that is effective in the country where it was rendered, is no
longer married to the Filipino spouse. The provision is a Although the Family Code was not enacted by the Congress,
corrective measure to address an anomaly where the Filipino the same principle applies with respect to the acts of the
spouse is tied to the marriage while the foreign spouse is free President, which have the force and effect of law unless
to marry under the laws of his or her country.[42] Whether the declared otherwise by the court. In this case, We find that
Filipino spouse initiated the foreign divorce proceeding or not, Paragraph 2 of Article 26 violates one of the essential
a favorable decree dissolving the marriage bond and requisites[53] of the equal protection clause.[54] Particularly,
capacitating his or her alien spouse to remarry will have the the limitation of the provision only to a foreign divorce decree
same result: the Filipino spouse will effectively be without a initiated by the alien spouse is unreasonable as it is based on
husband or wife. A Filipino who initiated a foreign divorce superficial, arbitrary, and whimsical classification.
proceeding is in the same place and in "like circumstance as a
Filipino who is at the receiving end of an alien initiated A Filipino who is married to another Filipino is not similarly
proceeding. Therefore, the subject provision should not make situated with a Filipino who is married to a foreign citizen.
a distinction. In both instance, it is extended as a means to There are real, material and substantial differences between
recognize the residual effect of the foreign divorce decree on them. Ergo, they should not be treated alike, both as to rights
Filipinos whose marital ties to their alien spouses are severed conferred and liabilities imposed. Without a doubt, there are
by operation of the latter's national law. political, economic, cultural, and religious dissimilarities as
well as varying legal systems and procedures, all too
unfamiliar, that a Filipino national who is married to an alien that a man and woman deporting themselves as husband and
spouse has to contend with. More importantly, while a divorce wife have entered into a lawful contract of marriage,[61] and
decree obtained abroad by a Filipino against another Filipino that the law has been obeyed.[62] It is whimsical to easily
is null and void, a divorce decree obtained by an alien against attribute any illegal, irregular or immoral conduct on the part
his or her Filipino spouse is recognized if made in accordance of a Filipino just because he or she opted to marry a foreigner
with the national law of the foreigner.[55] instead of a fellow Filipino. It is presumed that interracial
unions are entered into out of genuine love and affection,
On the contrary, there is no real and substantial difference rather than prompted by pure lust or profit. Third, We take
between a Filipino who initiated a foreign divorce proceedings judicial notice of the fact that Filipinos are relatively more
and a Filipino who obtained a divorce decree upon the forbearing and conservative in nature and that they are more
instance of his or her alien spouse. In the eyes of the often the victims or at the losing end of mixed marriages. And
Philippine and foreign laws, both are considered as Filipinos Fourth, it is not for Us to prejudge the motive behind a
who have the same rights and obligations in a alien land. The Filipino's decision to marry an alien national. In one case, it
circumstances surrounding them are alike. Were it not for was said:
Paragraph 2 of Article 26, both are still married to their
foreigner spouses who are no longer their wives/husbands. Motives for entering into a marriage are varied and complex.
Hence, to make a distinction between them based merely on The State does not and cannot dictate on the kind of life that a
the superficial difference of whether they initiated the divorce couple chooses to lead. Any attempt to regulate their lifestyle
proceedings or not is utterly unfair. Indeed, the treatment gives would go into the realm of their right to privacy and would
undue favor to one and unjustly discriminate against the other. raise serious constitutional questions. The right to marital
privacy allows married couples to structure their marriages in
Further, the differentiation in Paragraph 2 of Article 26 is almost any way they see fit, to live together or live apart, to
arbitrary. There is inequality in treatment because a foreign have children or no children, to love one another or not, and so
divorce decree that was initiated and obtained by a Filipino on. Thus, marriages entered into for other purposes, limited or
citizen against his or her alien spouse would not be recognized otherwise, such as convenience, companionship, money,
even if based on grounds similar to Articles 35, 36, 37 and 38 status, and title, provided that they comply with all the legal
of the Family Code.[56] In filing for divorce based on these requisites, are equally valid. Love, though the ideal
grounds, the Filipino spouse cannot be accused of invoking consideration in a marriage contract, is not the only valid
foreign law at whim, tantamount to insisting that he or she cause for marriage. Other considerations, not precluded by
should be governed with whatever law he or she chooses. The law, may validly support a marriage.[63]
dissent's comment that Manalo should be "reminded that all is
not lost, for she may still pray for the severance of her marital The 1987 Constitution expresses that marriage, as an
ties before the RTC in accordance with the mechanisms now inviolable social institution, is the foundation of the family and
existing under the Family Code" is anything but comforting. shall be protected by the State.[64] Nevertheless, it was not
For the guidance of the bench and the bar, it would have been meant to be a general prohibition on divorce because
better if the dissent discussed in detail what these Commissioner Jose Luis Martin C. Gascon, in response to a
"mechanisms" are and how they specifically apply in Manalo's question by Father Joaquin G. Bernas during the deliberations
case as well as those who are similarly situated. If the dissent of the 1986 Constitutional Commission, was categorical about
refers to a petition for declaration of nullity or annulment of this point.[65] Their exchange reveal as follows:
marriage, the reality is that there is no assurance that our
courts will automatically grant the same. Besides, such MR. RAMA. Mr. Presiding Officer, may I ask that
proceeding is duplicitous, costly, and protracted. All to the Commissioner Bernas be recognized.
prejudice of our kababayan.
THE PRESIDING OFFICER (Mr. Colayco). Commissioner
It is argued that the Court's liberal interpretation of Paragraph Bernas is recognized.
2 of Article 26 encourages Filipinos to marry foreigners,
opening the floodgate to the indiscriminate practice of FR. BERNAS. Just one question, and I am not sure if it has
Filipinos marrying foreign nationals or initiating divorce been categorically answered. I refer specifically to the
proceedings against their alien spouses. proposal of Commissioner Gascon. Is this to be understood as
a prohibition of a general law on divorce? His intention is to
The supposition is speculative and unfounded. make this a prohibition so that the legislature cannot pass a
divorce law.
First, the dissent falls into a hasty generalization as no data
whatsoever was shown to support what he intends to prove. MR. GASCON. Mr. Presiding Officer, that was not primarily
Second, We adhere to the presumption of good faith in this my intention. My intention was primarily to encourage the
jurisdiction. Under the rules on evidence, it is disputably social institution of marriage, but not necessarily discourage
presumed (i.e., satisfactory if uncontradicted and overcome by divorce. But now that he mentioned the issue of divorce, my
other evidence) that a person is innocent of crime or wrong, personal opinion is to discourage it, Mr. Presiding Officer.
[57] that a person intends the ordinary consequences of his
voluntary acts,[58] that a person takes ordinary care of his FR. BERNAS. No. my question is more categorical. Does this
concerns,[59] that acquiescence resulted from a belief that the carry the meaning of prohibiting a divorce law?
thing acquiesced in was conformable to the law and fact,[60]
MR. GASCON. No. Mr. Presiding Officer. child is born to them by in vitro or a similar procedure or
when the wife bears a child after being a victim of rape;
FR. BERNAS. Thank you.[66] i. Attempt by the respondent against the life of the petitioner, a
common child or a child of the petitioner; and
Notably, a law on absolute divorce is not new in our country. j. Abandonment of petitioner by respondent without justifiable
Effective March 11, 1917, Philippine courts could grant an cause for more than one (1) year.
absolute divorce on the grounds of adultery on the part of the
wife or concubinage on the part of the husband by virtue of When the spouses are legally separated by judicial decree for
Act No. 2710 of the Philippine Legislature.[67] On March 25, more than two (2) years, either or both spouses can petition the
1943, pursuant to the authority conferred upon him by the proper court for an absolute divorce based on said judicial
Commander-in-Chief of the Imperial Japanese Forces in the decree of legal separation.
Philippines and with the approval of the latter, the Chairman
of the Philippine Executive Commission promulgated an E.O. 1. Grounds for annulment of marriage under Article 45 of the
No. 141 ("New Divorce Law"), which repealed Act No. 2710 Family Code, restated as follows:
and provided eleven grounds for absolute divorce, such as
intentional or unjustified desertion continuously for at least The party in whose behalf it is sought to have the marriage
one year prior to the filing of the action, slander by deed or annulled was eighteen (18) years of age or over but below
gross insult by one spouse against the other to such an extent twenty-one (21), and the marriage was solemnized without the
as to make further living together impracticable, and a spouse's consent of the parents, guardian or person having substitute
incurable insanity.[68] When the Philippines was liberated and parental authority over the party, in that order, unless after
the Commonwealth Government was restored, it ceased to attaining the age of twenty-one (21), such party freely
have force and effect and Act No. 2710 again prevailed.[69] cohabited with the other and both lived together as husband or
From August 30, 1950, upon the effectivity of Republic Act wife;
No. 386 or the New Civil Code, an absolute divorce obtained either party was of unsound mind, unless such party after
by Filipino citizens, whether here or abroad, is no longer coming to reason, freely cohabited with the other as husband
recognized.[70] and wife;
The consent of either party was obtained by fraud, unless such
Through the years, there has been constant clamor from party afterwards with full knowledge of the facts constituting
various sectors of the Philippine society to re-institute absolute the fraud, freely cohabited with the other as husband and wife;
divorce. As a matter of fact, in the current 17th Congress, The consent of either party was obtained by force, intimidation
House Bill (H.B.) Nos. 116,[71] 1062,[72] 2380[73] and or undue influence, unless the same having disappeared or
6027[74] were filed in the House of Representatives. In ceased, such party thereafter freely cohabited with the other as
substitution of these bills, H.B. No. 7303 entitled "An Act husband and wife;
Instituting Absolute Divorce and Dissolution of Marriage in Either party was physically incapable of consummating the
the Philippines" or the Absolute Divorce Act of 2018 was marriage with the other and such incapacity continues or
submitted by the House Committee on Population and Family appears to be incurable; and
Relations on February 28, 2018. It was approved on March 19, Either party was afflicted with a sexually transmissible
2018 on Third Reading - with 134 in favor, 57 against, and 2 infection found to be serious or appears to be incurable.
abstentions. Under the bill, the grounds for a judicial decree of Provided, That the grounds mentioned in b, e and f existed
absolute divorce are as follows: either at the time of the marriage or supervening after the
marriage.
The grounds for legal separation under Article 55 of the
Family Code, modified or amended, as follows: When the spouses have been separated in fact for at least five
a. Physical violence or grossly abusive conduct directed (5) years at the time the petition for absolute divorce is filed,
against the petitioner, a common child, or a child of the and reconciliation is highly improbable;
petitioner; Psychological incapacity of either spouse as provided for in
b. Physical violence or moral pressure to compel the petitioner Article 36 of the Family Code, whether or not the incapacity
to change religious or political affiliation; was present at the time of the celebration of the marriage or
c. Attempt of respondent to corrupt or induce the petitioner, a later;
common child, or a child of the petitioner, to engage in When one of the spouses undergoes a gender reassignment
prostitution, or connivance in such corruption or inducement; surgery or transitions from one sex to another, the other spouse
d. Final judgment sentencing the respondent to imprisonment is entitled to petition for absolute divorce with the transgender
of more than six (6) years, even if pardoned; or transsexual as respondent, or vice-versa;
e. Drug addiction or habitual alcoholism or chronic gambling Irreconcilable marital differences and conflicts which have
of the respondent; resulted in the total breakdown of the marriage beyond repair,
f. Homosexuality of the respondent; despite earnest and repeated efforts at reconciliation.
g. Contracting by the respondent of a subsequent bigamous To be sure, a good number of the Filipinos led by the Roman
marriage, whether in the Philippines or abroad; Catholic Church react adversely to any attempt to enact a law
h. Marital infidelity or perversion or having a child with on absolute divorce, viewing it as contrary to our customs,
another person other than one's spouse during the marriage, morals, and traditions that has looked upon marriage and
except when upon the mutual agreement of the spouses, a family as an institution and their nature of permanence,
inviolability, and solidarity. However, none of our laws should
be based on any religious law, doctrine, or teaching; otherwise, consequences, not only to the parent but also to the child, if
the separation of Church and State will be violated.[75] We are to hold a restrictive interpretation of the subject
provision. The irony is that the principle of inviolability of
In the same breath that the establishment clause restricts what marriage under Section 2, Article XV of the Constitution is
the government can do with religion, it also limits what meant to be tilted in favor of marriage and against unions not
religious sects can or cannot do. They can neither cause the formalized by marriage, but without denying State protection
government to adopt their particular doctrines as policy for and assistance to live-in arrangements or to families formed
everyone, nor can they cause the government to restrict other according to indigenous customs.[82]
groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus, establish a state This Court should not turn a blind eye to the realities of the
religion.[76] present time. With the advancement of communication and
information technology, as well as the improvement of the
The Roman Catholic Church can neither impose its beliefs and transportation system that almost instantly connect people
convictions on the State and the rest of the citizenry nor can it from all over the world, mixed marriages have become not too
demand that the nation follow its beliefs, even if it sincerely uncommon. Likewise, it is recognized that not all marriages
believes that they are good for the country.[77] While are made in heaven and that imperfect humans more often than
marriage is considered a sacrament, it has civil and legal not create imperfect unions.[83] Living in a flawed world, the
consequences which are governed by the Family Code.[78] It unfortunate reality for some is that the attainment of the
is in this aspect, bereft of any ecclesiastical overtone, that the individual's full human potential and self-fulfillment is not
State has a legitimate right and interest to regulate. found and achieved in the context of a marriage. Thus, it is
hypocritical to safeguard the quantity of existing marriages
The declared State policy that marriage, as an inviolable social and, at the same time, brush aside the truth that some of them
institution, is the foundation of the family and shall be are of rotten quality.
protected by the State, should not be read in total isolation but
must be harmonized with other constitutional provisions. Going back, We hold that marriage, being a mutual and shared
Aside from strengthening the solidarity of the Filipino family, commitment between two parties, cannot possibly be
the State is equally mandated to actively promote its total productive of any good to the society where one is considered
development.[79] It is also obligated to defend, among others, released from the marital bond while the other remains bound
the right of children to special protection from all forms of to it.[84] In reiterating that the Filipino spouse should not be
neglect, abuse, cruelty, exploitation, and other conditions discriminated against in his or her own country if the ends of
prejudicial to their development.[80] To Our mind, the State justice are to be served, San Luis v. San Luis[85] quoted:
cannot effectively enforce these obligations if We limit the
application of Paragraph 2 of Article 26 only to those foreign x x x In Alonzo v. Intermediate Appellate Court, the Court
divorce initiated by the alien spouse. It is not amiss to point stated:
that the women and children are almost always the helpless
victims of all forms of domestic abuse and violence. In fact, But as has also been aptly observed, we test a law by its
among the notable legislation passed in order to minimize, if results; and likewise, we may add, by its purposes. It is a
not eradicate, the menace are R.A. No. 6955 (prohibiting mail cardinal rule that, in seeking the meaning of the law, the first
order bride and similar practices), R.A. No. 9262 ("Anti- concern of the judge should be to discover in its provisions the
Violence Against Women and Their Children Act of 2004"), intent of the lawmaker. Unquestionably, the law should never
R.A. No. 9710 ("The Magna Carta of Women"), R.A. No. be interpreted in such a way as to cause injustice as this is
10354 ("The Responsible Parenthood and Reproductive never within the legislative intent. An indispensable part of
Health Act of 2012"), and R.A. No. 9208 ("Anti-Trafficking in that intent, in fact, for we presume the good motives of the
Persons Act of 2003"), as amended by R.A. No. 10364 legislature, is to render justice.
("Expanded Anti-Trafficking in Persons Act of 2012").
Moreover, in protecting and strengthening the Filipino family Thus, we interpret and apply the law not independently of but
as a basic autonomous social institution, the Court must not in consonance with justice. Law and justice are inseparable,
lose sight of the constitutional mandate to value the dignity of and we must keep them so. To be sure, there are some laws
every human person, guarantee full respect for human rights, that, while generally valid, may seem arbitrary when applied
and ensure the fundamental equality before the law of women in a particular case because of its peculiar circumstances. In
and men.[81] such a situation, we are not bound, because only of our nature
and functions, to apply them just the same, in slavish
A prohibitive view of Paragraph 2 of Article 26 would do obedience to their language. What we do instead is find a
more harm than good. If We disallow a Filipino citizen who balance between the word and the will, that justice may be
initiated and obtained a foreign divorce from the coverage of done even as the law is obeyed.
Paragraph 2 of Article 26 and still require him or her to first
avail of the existing "mechanisms" under the Family Code, As judges, we are not automatons. We do not and must not
any subsequent relationship that he or she would enter in the unfeelingly apply the law as it is worded, yielding like robots
meantime shall be considered as illicit in the eyes of the to the literal command without regard to its cause and
Philippine law. Worse, any child born out of such "extra- consequence. "Courts are apt to err by sticking too closely to
marital" affair has to suffer the stigma of being branded as the words of a law," so we are warned, by Justice Holmes
illegitimate. Surely, these are just but a few of the adverse
again, "where these words import a policy that goes beyond divorce; 2) the Authentication/Certificate issued by the
them." Philippine Consulate General in Osaka, Japan of the Decree of
Divorce; and 3) Acceptance of Certificate of Divorce by
xxxx Petitioner and the Japanese national. Under Rule 132, Sections
24 and 25, in relation to Rule 39, Section 48 (b) of the Rules
More than twenty centuries ago, Justinian defined justice "as of Court, these documents sufficiently prove the subject
the constant and perpetual wish to render every one his due." Divorce Decree as a fact. Thus, We are constrained to
That wish continues to motivate this Court when it assesses recognize the Japanese Court's judgment decreeing the
the facts and the law in every case brought to it for decision. divorce.[93]
Justice is always an essential ingredient of its decisions. Thus
when the facts warrant, we interpret the law in a way that will If the opposing party fails to properly object, as in this case,
render justice, presuming that it was the intention of the the divorce decree is rendered admissible as a written act of
lawmaker, to begin with, that the law be dispensed with the foreign court.[94] As it appears, the existence of the
justice.[86] divorce decree was not denied by the OSG; neither was the
jurisdiction of the divorce court impeached nor the validity of
Indeed, where the interpretation of a statute according to its its proceedings challenged on the ground of collusion, fraud,
exact and literal import would lead to mischievous results or or clear mistake of fact or law, albeit an opportunity to do so.
contravene the clear purpose of the legislature, it should be [95]
construed according to its spirit and reason, disregarding as far
as necessary the letter of the law.[87] A statute may, therefore, Nonetheless, the Japanese law on divorce must still be proved.
be extended to cases not within the literal meaning of its
terms, so long as they come within its spirit or intent.[88] x x x The burden of proof lies with the "party who alleges the
existence of a fact or thing necessary in the prosecution or
The foregoing notwithstanding, We cannot yet write finis to defense of an action." In civil cases, plaintiffs have the burden
this controversy by granting Manalo's petition to recognize of proving the material allegations of the complaint when
and enforce the divorce decree rendered by the Japanese court those are denied by the answer; and defendants have the
and to cancel the entry of marriage in the Civil Registry of San burden of proving the material allegations in their answer
Juan, Metro Manila. when they introduce new matters. x x x

Jurisprudence has set guidelines before Philippine courts It is well-settled in our jurisdiction that our courts cannot take
recognize a foreign judgment relating to the status of a judicial notice of foreign laws. Like any other facts, they must
marriage where one of the parties is a citizen of a foreign be alleged and proved. x x x The power of judicial notice must
country. Presentation solely of the divorce decree will not be exercised with caution, and every reasonable doubt upon
suffice.[89] The fact of divorce must still first be proven.[90] the subject should be resolved in the negative.[96]
Before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact Since the divorce was raised by Manalo, the burden of proving
and demonstrate its conformity to the foreign law allowing it. the pertinent Japanese law validating it, as well as her former
[91] husband's capacity to remarry, fall squarely upon her. Japanese
laws on persons and family relations are not among those
x x x Before a foreign judgment is given presumptive matters that Filipino judges are supposed to know by reason of
evidentiary value, the document must first be presented and their judicial function.
admitted in evidence. A divorce obtained abroad is proven by
the divorce decree itself. Indeed the best evidence of a WHEREFORE, the petition for review on certiorari is
judgment is the judgment itself. The decree purports to be a DENIED. The September 18, 2014 Decision and October 12,
written act or record of an act of an official body or tribunal of 2015 Resolution of the Court of Appeals in CA-G.R. CV No.
a foreign country. 100076, are AFFIRMED IN PART. The case is REMANDED
to the court of origin for further proceedings and reception of
Under Sections 24 and 25 of Rule 132, on the other hand, a evidence as to the relevant Japanese law on divorce.
writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication SO ORDERED.
or (2) a copy thereof attested by the officer having legal
custody of the document. If the record is not kept in the Carpio,[*] Velasco, Jr., Leonardo-De Castro, Bersamin,
Philippines, such copy must be (a) accompanied by a Martires, Tijam, Reyes, Jr., and Gesmundo, JJ., concur.
certificate issued by the proper diplomatic or consular officer Leonen, J., concur. See separate opinion.
in the Philippine foreign service stationed in the foreign Del Castillo and Perlas-Bernabe, JJ., join the dissent of J.
country in which the record is kept and (b) authenticated by Caguioa.
the seal of his office.[92] Caguioa, J., see dissenting opinion.
Sereno, C.J., on leave.
In granting Manalo's petition, the CA noted: Jardeleza, J., no part.
803 Phil. 207
In this case, Petitioner was able to submit before the court a
quo the 1) Decision of the Japanese Court allowing the THIRD DIVISION
[ G.R. No. 193340, January 11, 2017 ] filing of a motion to dismiss is a disallowed pleading under the
THE MUNICIPALITY OF TANGKAL, PROVINCE OF Special Rules of Procedure in Shari'a Courts.[5]
LANAO DEL NORTE, PETITIONER, VS. HON. RASAD
B. BALINDONG, IN HIS CAPACITY AS PRESIDING The Municipality of Tangkal moved for reconsideration,
JUDGE, SHARI'A DISTRICT COURT, 4TH JUDICIAL which was denied by the Shari'a District Court. The Shari'a
DISTRICT, MARAWI CITY, AND HEIRS OF THE LATE District Court also ordered the Municipality of Tangkal to file
MACALABO ALOMPO, REPRESENTED BY SULTAN its answer within 10 days.[6] The Municipality of Tangkal
DIMNANG B.ALOMPO, RESPONDENTS. timely filed its answer[7] and raised as an affirmative defense
the court's lack of jurisdiction.
DECISION
Within the 60-day reglementary period, the Municipality of
JARDELEZA, J.: Tangkal elevated the case to us via petition for certiorari,
prohibition, and mandamus with prayer for a temporary
The Code of Muslim Personal Laws of the Philippines[1] restraining order[8] (TRO). It reiterated its arguments in its
(Code of Muslim Personal Laws) vests concurrent jurisdiction earlier motion to dismiss and answer that the Shari'a District
upon Shari'a district courts over personal and real actions Court has no jurisdiction since one party is a municipality
wherein the parties involved are Muslims, except those for which has no religious affiliation.
forcible entry and unlawful detainer. The question presented is
whether the Shari'a District Court of Marawi City has In their Comment,[9] private respondents argue that under the
jurisdiction in an action for recovery of possession filed by Special Rules of Procedure in Shari'a Courts, a petition for
Muslim individuals against a municipality whose mayor is a certiorari, mandamus, or prohibition against any interlocutory
Muslim. The respondent judge held that it has. We reverse. order issued by the district court is a prohibited pleading.
Likewise, the Municpality of Tangkal's motion to dismiss is
I disallowed by the rules. They also echo the reasoning of the
Shari'a District Court that since both the plaintiffs below and
The private respondents, heirs of the late Macalabo Alompo, the mayor of defendant municipality are Muslims, the Shari'a
filed a Complaint[2] with the Shari'a District Court of Marawi District Court has jurisdiction over the case.
City (Shari'a District Court) against the petitioner,
Municipality of Tangkal, for recovery of possession and In the meantime, we issued a TRO[10] against the Shari'a
ownership of a parcel of land with an area of approximately 25 District Court and its presiding judge, Rasad Balindong, from
hectares located at Barangay Banisilon, Tangkal, Lanao del holding any further proceedings in the case below.
Norte. They alleged that Macalabo was the owner of the land,
and that in 1962, he entered into an agreement with the II
Municipality of Tangkal allowing the latter to "borrow" the
land to pave the way for the construction of the municipal hall In its petition, the Municipality of Tangkal acknowledges that
and a health center building. The agreement allegedly imposed generally, neither certiorari nor prohibition is an available
a condition upon the Municipality of Tangkal to pay the value remedy to assail a court's interlocutory order denying a motion
of the land within 35 years, or until 1997; otherwise, to dismiss. But it cites one of the exceptions to the rule, i.e.,
ownership of the land would revert to Macalabo. Private when the denial is without or in excess of jurisdiction to
respondents claimed that the Municipality of Tangkal neither justify its remedial action.[11] In rebuttal, private respondents
paid the value of the land within the agreed period nor rely on the Special Rules of Procedure in Shari'a Courts which
returned the land to its owner. Thus, they prayed that the land expressly identifies a motion to dismiss and a petition for
be returned to them as successors-in-interest of Macalabo. certiorari, mandamus, or prohibition against any interlocutory
order issued by the court as prohibited pleadings.[12]
The Municipality of Tangkal filed an Urgent Motion to
Dismiss[3] on the ground of improper venue and lack of A
jurisdiction. It argued that since it has no religious affiliation
and represents no cultural or ethnic tribe, it cannot be Although the Special Rules of Procedure in Shari'a Courts
considered as a Muslim under the Code of Muslim Personal prohibits the filing of a motion to dismiss, this procedural rule
Laws. Moreover, since the complaint for recovery of land is a may be relaxed when the ground relied on is lack of
real action, it should have been filed in the appropriate jurisdiction which is patent on the face of the complaint. As
Regional Trial Court of Lanao del Norte. we held in Rulona-Al Awadhi v. Astih:[13]
Instead of invoking a procedural technicality, the respondent
In its Order[4] dated March 9, 2010, the Shari'a District Court court should have recognized its lack .of jurisdiction over the
denied the Municipality of Tangkal's motion to dismiss. It held parties and promptly dismissed the action, for, without
that since the mayor of Tangkal, Abdulazis A.M. Batingolo, is jurisdiction, all its proceedings would be, as they were, a futile
a Muslim, the case "is an action involving Muslims, hence, the and invalid exercise. A summary rule prohibiting the filing of
court has original jurisdiction concurrently with that of a motion to dismiss should not be a bar to the dismissal of the
regular/civil courts." It added that venue was properly laid action for lack of jurisdiction when the jurisdictional infirmity
because the Shari'a District Court has territorial jurisdiction is patent on the face of the complaint itself, in view of the
over the provinces of Lanao del Sur and Lanao del Norte, in fundamental procedural doctrine that the jurisdiction of a court
addition to the cities of Marawi and Iligan. Moreover, the
may be challenged at anytime and at any stage of the action. that private respondents, as plaintiffs below, are Muslims. The
[14] only dispute is whether the requirement is satisfied because
Indeed, when it is apparent from the pleadings that the court the mayor of the defendant municipality is also a Muslim.
has no jurisdiction over the subject matter, it is duty-bound to
dismiss the case regardless of whether the defendant filed a When Article 143(2)(b) qualifies the conferment of
motion to dismiss.[15] Thus, in Villagracia v. Fifth Shari'a jurisdiction to actions "wherein the parties involved are
District Court,[16] we held that once it became apparent that Muslims," the word "parties" necessarily refers to the real
the Shari'a court has no jurisdiction over the subject matter parties in interest. Section 2 of Rule 3 of the Rules of Court
because the defendant is not a Muslim, the court should have defines real parties in interest as those who stand to be
motu proprio dismissed the case.[17] benefited or injured by the judgment in the suit, or are entitled
to the avails of the suit. In this case, the parties who will be
B directly benefited or injured are the private respondents, as
real party plaintiffs, and the Municipality of Tangkal, as the
An order denying a motion to dismiss is an interlocutory order real party defendant. In their complaint, private respondents
which neither terminates nor finally disposes of a case as it claim that their predecessor-in-interest, Macalabo, entered into
leaves something to be done by the court before the case is an agreement with the Municipality of Tangkal for the use of
finally decided on the merits. Thus, as a general rule, the the land. Their cause of action is based on the Municipality of
denial of a motion to dismiss cannot be questioned in a special Tangkal's alleged failure and refusal to return the land or pay
civil action for certiorari which is a remedy designed to correct for its reasonable value in accordance with the agreement.
errors of jurisdiction and not errors of judgment.[18] As Accordingly, they pray for the return of the land or the
exceptions, however, the defendant may avail of a petition for payment of reasonable rentals thereon. Thus, a judgment in
certiorari if the ground raised in the motion to dismiss is lack favor of private respondents, either allowing them to recover
of jurisdiction over the person of the defendant or over the possession or entitling them to rentals, would undoubtedly be
subject matter,[19] or when the denial of the motion to dismiss beneficial to them; correlatively, it would be prejudicial to the
ts tainted with grave abuse of discretion.[20] Municipality of Tangkal which would either be deprived
possession of the land on which its municipal hall currently
The reason why lack of jurisdiction as a ground for dismissal stands or be required to allocate funds for payment of rent.
is treated differently from others is because of the basic Conversely, a judgment in favor of the Municipality of
principle that jurisdiction is conferred by law, and lack of it Tangkal would effectively quiet its title over the land and
affects the very authority of the court to take cognizance of defeat the claims of private respondents.
and to render judgment on the action[21] to the extent that all
proceedings before a court without jurisdiction are void.[22] It is clear from the title and the averments in the complaint that
We grant certiorari on this basis. As will be shown below, the Mayor Batingolo was impleaded only in a representative
Shari'a District Court's lack of jurisdiction over the subject capacity, as chief executive of the local government of
matter is patent on the face of the complaint, and therefore, Tangkal. When an action is defended by a representative, that
should have been dismissed outright. representative is not-and neither does he become-a real party
in interest. The person represented is deemed the real party in
III interest;[29] the representative remains to be a third party to
the action.[30] That Mayor Batingolo is a Muslim is therefore
The matters over which Shari'a district courts have Jurisdiction irrelevant for purposes of complying with the jurisdictional
are enumerated in the Code of Muslim Personal Laws, requirement under Article 143(2)(b) that both parties be
specifically in Article 143.[23] Consistent with the purpose of Muslims. To satisfy the requirement, it is the real party
the law to provide for an effective administration and defendant, the Municipality of Tangkal, who must be a
enforcement of Muslim personal laws among Muslims,[24] it Muslim. Such a proposition, however, is a legal impossibility.
has a catchall provision granting Shari'a district courts original
jurisdiction over personal and real actions except those for The Code of Muslim Personal Laws defines a "Muslim" as "a
forcible entry and unlawful detainer.[25] The Shari'a district person who testifies to the oneness of God and the
courts' jurisdiction over these matters is concurrent with Prophethood of Muhammad and professes Islam."[31]
regular civil courts, i.e., municipal trial courts and regional Although the definition does not explicitly distinguish
trial courts.[26] There is, however, a limit to the general between natural and juridical persons, it nonetheless connotes
jurisdiction of Shari'a district courts over matters ordinarily the exercise of religion, which is a fundamental personal right.
cognizable by regular courts: such jurisdiction may only be [32] The ability to testify to the "oneness of God and the
invoked if both parties are Muslims. If one party is not a Prophethood of Muhammad" and to profess Islam is, by its
Muslim, the action must be filed before the regular courts.[27] nature, restricted to natural persons. In contrast, juridical
persons are artificial beings with "no consciences, no beliefs,
The complaint below, which is a real action[28] involving title no feelings, no thoughts, no desires."[33] They are considered
to and possession of the land situated at Barangay Banisilon, persons only by virtue of legal fiction. The Municipality of
Tangkal, was filed by private respondents before the Shari'a Tangkal falls under this category. Under the Local
District Court pursuant to the general jurisdiction conferred by Government Code, a municipality is a body politic and
Article 143(2)(b). In determining whether the Shari'a District corporate that exercises powers as a political subdivision of
Court has jurisdiction over the case, the threshold question is the national government and as a corporate entity representing
whether both parties are Muslims. There is no disagreement the inhabitants of its territory.[34]
* Designated as Fifth Member of the Third Division per
Furthermore, as a government instrumentality, the Special Order No. 2417 dated January 4, 2017.
Municipality of Tangkal can only act for secular purposes and
in ways that have primarily secular effects[35]-consistent with [1] Presidential Decree No. 1083 (1977).
the non-establishment clause.[36] Hence, even if it is assumed
that juridical persons are capable of practicing religion, the [2] Rollo, pp. 39-47.
Municipality of Tangkal is constitutionally proscribed from
adopting, much less exercising, any religion, including Islam. [3] Id. at 48-53.

The Shari'a District Court appears to have understood the [4] Id. at 57-A.
foregoing principles, as it conceded that the Municipality of
Tangkal "is neither a Muslim nor a Christian."[37] Yet it still [5] En Banc Resolution promulgated by the Supreme Court on
proceeded to attribute the religious affiliation of the mayor to September 20, 1983.
the municipality. This is manifest error on the part of the
Shari'a District Court. It is an elementary principle that a [6] Rollo, p. 76.
municipality has a personality that is separate and distinct
from its mayor, vice-mayor, sanggunian, and other officers [7] Id. at 84-89.
composing it.[38] And under no circumstances can this
corporate veil be pierced on purely religious considerations-as [8] Id. at 6-37.
the Shari'a District Court has done-without running afoul the
inviolability of the separation of Church and State enshrined in [9] Id. at 96-105.
the Constitution.[39]
[10] Id. at 122-123.
In view of the foregoing, the Shari'a District Court had no
jurisdiction under the law to decide private respondents' [11] Id. at 6-8.
complaint because not all of the parties involved in the action
are Muslims. Since it was clear from the complaint that the [12] Id. at 96-97, citing the Special Rules of Procedure in
real party defendant was the Municipality of Tangkal, the Shari'a Courts, Sec. 13(a) & (f).
Shari'a District Court should have simply applied the basic
doctrine of separate juridical personality and motu proprio [13] G.R. No. L-81969, September 2, 1988, 165 SCRA 771.
dismissed the case.
[14] Id. at 777. Citations omitted.
WHEREFORE, the petition is GRANTED. The assailed
orders of the Shari'a District Court of Marawi City in Civil [15] RULES OF COURT, Rule 9, Sec. 1.
Case No. 201-09 are REVERSED and SET ASIDE.
Accordingly, Civil Case No. 201-09 is DISMISSED. [16] G.R. No. 188832, April 23, 2014, 723 SCRA 550.

SO ORDERED. [17] Id. at 565-566.

Velasco, Jr., (Chairperson), Bersamin, Reyes, and Caguioa,* [18] Republic v. Transunion Corporation, G.R. No. 191590,
JJ., concur. April 21, 2014, 722 SCRA 273, 279.

[19] Tung Ho Steel Enterprises Corporation v. Ting Guan


January 30, 2017 Trading Corporation, G.R. No. 182153, April 7, 2014, 720
SCRA 707, 720.
NOTICE OF JUDGMENT
[20] Republic v. Transunion Corporation, supra at 279.
Sirs / Mesdames:
[21] Francel Realty Corporation v. Sycip, G.R. No. 154684,
Please take notice that on January 11, 2017 a Decision, copy September 8, 2005, 469 SCRA 424, 431.
attached hereto, was rendered by the Supreme Court in the
above-entitled case, the original of which was received by this [22] Monsanto v. Lim, G.R. No. 178911, September 17, 2014,
Office on January 30, 2017 at 2:00 p.m. 735 SCRA 252, 265-266.

[23] Art.143. Originaljurisdiction. -


Very truly yours,
(SGD) (1)
WILFREDO V. LAPITAN The Shari'a District Court shall have exclusive original
jurisdiction over:
Division Clerk of Court (a)
All cases involving custody, guardianship, legitimacy,
paternity and filiation arising under this Code;
(b)
All cases involving disposition, distribution and settlement of [34] LOCAL GOV'T CODE, Sec. 15.
the estate of deceased Muslims, probate of wills, issuance of
letters of administration or appointment of administrator or [35] Ang Ladlad LGBT Party v. Commission on Elections,
executors regardless of the nature or the aggregate value of the G.R. No. 190582, April 8, 2010, 618 SCRA 32, 59.
property;
(c) [36] CONSTITUTION, Art. III, Sec. 5. No law shall be made
Petitions for the declaration of absence and death and for the respecting an establishment of religion, or prohibiting the free
cancellation or correction of entries in the Muslim Registries exercise thereof. The free exercise and enjoyment of religious
mentioned in Title VI of Book Two of this Code; profession and worship, without discrimination or preference,
(d) shall forever be allowed. No religious test shall be required for
All actions arising from customary contracts in which the the exercise of civil or political rights.
parties are Muslims, if they have not specified which law shall
govern their relations; and [37] Rollo, p. 57-A.
(e)
All petitions for mandamus, prohibition, injunction, certiorari, [38] Torio v. Fontanilla, G.R. No. L-29993, October 23, 1978,
habeas corpus, and all other auxiliary writs and processes in 85 SCRA 599, 615.
aid of its appellate jurisdiction.
(2) [39] CONSTITUTION, Article II, Sec. 6.
Concurrently with existing civil courts, the Shari'a District
Court shall have original jurisdiction over:
(a)
Petitions by Muslims for the constitution of a family home,
change of name and commitment of an insane person to an
asylum;
(b)
All other personal and real actions not mentioned in paragraph
1 (d) wherein the parties involved are Muslims except those
for forcible entry and unlawful detainer, which shall fall under
the exclusive original jurisdiction of the Municipal Circuit
Court; and
(c)
All special civil actions for interpleader or declaratory relief
wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.

[24] CODE OF MUSLIM PERSONAL LAWS, Art. 2(c).

[25] CODE OF MUSLIM PERSONAL LAWS, Art. 143(2)(b).

[26] Tomawis v. Balindong, G.R. No. 182434, March 5, 2010,


614 SCRA 354, 364-365.

[27] Villagracia v. Fifth Shari'a District Court, supra note 16 at


566.

[28] A real action is one affects title to or possession of real


property, or an interest therein. RULES OF COURT, Rule 4,
Sec. 1.

[29] RULES OF COURT, Rule 3, Sec. 3.

[30] Ang v. Ang, G.R. No. 186993, August 2012, 678 SCRA
699, 708-709.

[31] CODE OF MUSLIM PERSONAL LAWS, Art. 7(g).

[32] Victoriano v. Elizalde Rope Workers' Union, G.R. No. L-


25246, September 12, 1974, 59 SCRA 54, 72.

[33] Citizens United v. Federal Election Comm'n, 558 U.S.


310, 466 (2010), J. Stevens, dissenting.

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